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  THE LIFE OF JOHN MARSHALL

  Standard Library Edition


  IN FOUR VOLUMES

  VOLUME I




  [Illustration: JOHN MARSHALL AT 43
  From a miniature painted in Paris]




  THE LIFE
  OF
  JOHN MARSHALL

  BY
  ALBERT J. BEVERIDGE

  VOLUME I

  FRONTIERSMAN, SOLDIER
  LAWMAKER

  1755-1788

  [Illustration]

  BOSTON AND NEW YORK
  HOUGHTON MIFFLIN COMPANY
  The Riverside Press Cambridge




  COPYRIGHT, 1916, BY ALBERT J. BEVERIDGE
  COPYRIGHT, 1919, BY HOUGHTON MIFFLIN COMPANY

  ALL RIGHTS RESERVED




PREFACE


The work of John Marshall has been of supreme importance in the
development of the American Nation, and its influence grows as time
passes. Less is known of Marshall, however, than of any of the great
Americans. Indeed, so little has been written of his personal life, and
such exalted, if vague, encomium has been paid him, that, even to the
legal profession, he has become a kind of mythical being, endowed with
virtues and wisdom not of this earth.

He appears to us as a gigantic figure looming, indistinctly, out of the
mists of the past, impressive yet lacking vitality, and seemingly
without any of those qualities that make historic personages
intelligible to a living world of living men. Yet no man in our history
was more intensely human than John Marshall and few had careers so full
of movement and color. His personal life, his characteristics and the
incidents that drew them out, have here been set forth so that we may
behold the man as he appeared to those among whom he lived and worked.

It is, of course, Marshall's public work with which we are chiefly
concerned. His services as Chief Justice have been so lauded that what
he did before he ascended the Supreme Bench has been almost entirely
forgotten. His greatest opinions, however, cannot be fully understood
without considering his previous life and experience. An account of
Marshall the frontiersman, soldier, legislator, lawyer, politician,
diplomat, and statesman, and of the conditions he faced in each of these
capacities, is essential to a comprehension of Marshall the constructive
jurist and of the problems he solved.

In order to make clear the significance of Marshall's public activities,
those episodes in American history into which his life was woven have
been briefly stated. Although to the historian these are twice-told
tales, many of them are not fresh in the minds of the reading public. To
say that Marshall took this or that position with reference to the
events and questions of his time, without some explanation of them,
means little to any one except to the historical scholar.

In the development of his career there must be some clear understanding
of the impression made upon him by the actions and opinions of other
men, and these, accordingly, have been considered. The influence of his
father and of Washington upon John Marshall was profound and
determinative, while his life finally became so interlaced with that of
Jefferson that a faithful account of the one requires a careful
examination of the other.

Vitally important in their effect upon the conduct and attitude of
Marshall and of the leading characters of his time were the state of the
country, the condition of the people, and the tendency of popular
thought. Some reconstruction of the period has, therefore, been
attempted. Without a background, the picture and the figures in it lose
much of their significance.

The present volumes narrate the life of John Marshall before his epochal
labors as Chief Justice began. While this was the period during which
events prepared him for his work on the bench, it was also a distinctive
phase of his career and, in itself, as important as it was picturesque.
It is my purpose to write the final part as soon as the nature of the
task permits.

For reading one draft of the manuscript of these volumes I am indebted
to Professor Edward Channing, of Harvard University; Dr. J. Franklin
Jameson, of the Carnegie Foundation for Historical Research; Professor
William E. Dodd, of Chicago University; Professor James A. Woodburn, of
Indiana University; Professor Charles A. Beard, of Columbia University;
Professor Charles H. Ambler, of Randolph-Macon College; Professor
Clarence W. Alvord, of the University of Illinois; Professor D. R.
Anderson, of Richmond College; Dr. H. J. Eckenrode, of Richmond College;
Dr. Archibald C. Coolidge, Director of the Harvard University Library;
Mr. Worthington C. Ford, of the Massachusetts Historical Society; and
Mr. Lindsay Swift, Editor of the Boston Public Library. Dr. William G.
Stanard, of the Virginia Historical Society, has read the chapters which
touch upon the colonial period. I have availed myself of the many
helpful suggestions made by these gentlemen and I gratefully acknowledge
my obligations to them.

Mr. Swift and Dr. Eckenrode, in addition to reading early drafts of the
manuscript, have read the last draft with particular care and I have
utilized their criticisms. The proof has been read by Mr. Swift and the
comment of this finished critic has been especially valuable.

I am indebted in the highest possible degree to Mr. Worthington C. Ford,
of the Massachusetts Historical Society, who has generously aided me
with his profound and extensive knowledge of manuscript sources and of
the history of the times of which this work treats. His sympathetic
interest and whole-hearted helpfulness have not only assisted me, but
encouraged and sustained me in the prosecution of my labors.

In making these acknowledgments, I do not in the least shift to other
shoulders the responsibility for anything in these volumes. That burden
is mine alone.

I extend my thanks to Mr. A. P. C. Griffin, Assistant Librarian, and Mr.
Gaillard Hunt, Chief of the Manuscripts Division, of the Library of
Congress, who have been unsparing in their efforts to assist me with all
the resources of that great library. The officers and their assistants
of the Virginia State Library, the Boston Public Library, the Library of
Harvard University, the Manuscripts Division of the New York Public
Library, the Massachusetts Historical Society, the Pennsylvania
Historical Society, and the Virginia Historical Society have been most
gracious in affording me all the sources at their command.

I desire to express my appreciation for original material furnished me
by several of the descendants and collateral relatives of John Marshall.
Miss Emily Harvie, of Richmond, Virginia, placed at my disposal many
letters of Marshall to his wife. For the use of the book in which
Marshall kept his accounts and wrote notes of law lectures, I am
indebted to Mrs. John K. Mason, of Richmond. A large number of original
and unpublished letters of Marshall were furnished me by Mr. James M.
Marshall, of Front Royal, Virginia, Mr. Robert Y. Conrad, of Winchester,
Virginia; Mrs. Alexander H. Sands, of Richmond, Virginia; Miss Sallie
Marshall, of Leeds, Virginia; Mrs. Claudia Jones, and Mrs. Fannie G.
Campbell of Washington, D.C.; Judge J. K. M. Norton, of Alexandria,
Virginia; Mr. A. Moore, Jr., of Berryville, Virginia; Dr. Samuel Eliot
Morison, of Boston, Massachusetts, and Professor Charles William Dabney,
of Cincinnati, Ohio. Complete copies of the highly valuable
correspondence of Mrs. Edward Carrington were supplied by Mr. John B.
Minor, of Richmond, Virginia, and by Mr. Carter H. FitzHugh, of Lake
Forest, Illinois. Without the material thus generously opened to me,
this narrative of Marshall's life would have been more incomplete than
it is and many statements in it would, necessarily, have been based on
unsupported tradition.

Among the many who have aided me, Judge James Keith, of Richmond,
Virginia, until recently President of the Court of Appeals of Virginia;
Judge J. K. M. Norton and the late Miss Nannie Burwell Norton of
Alexandria, Virginia; Mr. William Marshall Bullitt, of Louisville,
Kentucky; Mr. Thomas Marshall Smith, of Baltimore, Maryland; Mr. and
Mrs. Alexander H. Sands; Mr. W. P. Taylor and Dr. H. Norton Mason, of
Richmond, Virginia; Mr. Lucien Keith, Mr. William Horgan, and Mr.
William C. Marshall, of Warrenton, Virginia; Judge Henry H. Downing and
Mr. Aubrey G. Weaver, of Front Royal, Virginia, have rendered notable
assistance in the gathering of data.

I am under particular obligations to Miss Emily Harvie for the use of
the striking miniature of Marshall, the reproduction of which appears as
the frontispiece to the first volume; to Mr. Roland Gray, of Boston, for
the right to reproduce the portrait by Jarvis as the frontispiece of the
second volume; to Mr. Douglas H. Thomas of Baltimore, Maryland, for
photographs of the portraits of William Randolph, Mary Isham, and Mary
Randolph Keith; and to Mr. Charles Edward Marshall, of Glen Mary,
Kentucky, for permission to photograph the portrait of Colonel Thomas
Marshall.

The large number of citations has made abbreviations necessary. At the
end of each volume will be found a careful explanation of references,
giving the full title of the work cited, together with the name of the
author or editor, and a designation of the edition used.

The index has been made by Mr. David Maydole Matteson, of Cambridge,
Massachusetts, and his careful work has added to whatever of value these
volumes possess.

                                                 ALBERT J. BEVERIDGE




CONTENTS


  I. ANCESTRY AND ENVIRONMENT                                        1

    The defeat of Braddock--Influence on American opinion--
    Washington's heroism--Effect on Marshall's parents--
    Marshall's birth--American solidarity the first lesson
    taught him--Marshall's ancestry--Curious similarity to
    that of Jefferson, to whom he was related--The paternal
    line: the "Marshall legend"--Maternal line: the Randolphs,
    the Ishams, and the Keiths--Character of Marshall's
    parents--Colonial Virginia society--Shiftless agriculture
    and abundant land--Influence of slavery--Jefferson's
    analysis--Drinking heavy and universal--Education of the
    gentry and of the common people--The social divisions--
    Causes of the aristocratic tone of Virginia society--
    The backwoodsmen--Their character--Superiority of an
    occasional frontier family--The Marshalls of this class--
    The illustrious men produced by Virginia just before the
    Revolution.

  II. A FRONTIER EDUCATION                                          33

    Marshall's wilderness birthplace--His father removes to
    the Blue Ridge--The little house in "The Hollow"--Neighbors
    few and distant--Daily life of the frontier family--
    Marshall's delight in nature--Effect on his physical and
    mental development--His admiration for his father--The
    father's influence over and training of his son--Books:
    Pope's Poems--Marshall commits to memory at the age of
    twelve many passages--The "Essay on Man"--Marshall's father
    an assistant of Washington in surveying the Fairfax grant--
    Story of Lord Fairfax--His influence on Washington and on
    Marshall's father--Effect on Marshall--His father elected
    Burgess from Fauquier County--Vestryman, Sheriff, and
    leading man of his county--He buys the land in "The
    Hollow"--John Thompson, deacon, teaches Marshall for a
    year--His father buys more land and removes to Oak Hill--
    Subscribes to the first American edition of Blackstone--
    Military training interferes with Marshall's reading of
    Blackstone--He is sent to Campbell's Academy for a few
    months--Marshall's father as Burgess supports Patrick
    Henry, who defeats the tidewater aristocracy in the Robinson
    loan-office contest--Henry offers his resolutions on the
    Stamp Act: "If this be treason, make the most of it"--
    Marshall's father votes with Henry--1775 and Henry's
    "Resolutions for Arming and Defense"--His famous speech:
    "Give me liberty or give me death"--Marshall's father again
    supports Henry--Marshall learns from his father of these
    great events--Father and son ready to take the field against
    the British.

  III. A SOLDIER OF THE REVOLUTION                                  69

    The "Minute Men" of Virginia--Lieutenant John Marshall
    drills his company and makes a war speech--His appearance
    in his nineteenth year--Uniforms of the frontier--The
    sanguinary fight at Great Bridge--Norfolk--The Marshalls
    in the Continental service, the father as major, the son as
    lieutenant--Condition of the army--Confusion of authority--
    Unreliability of militia "who are here to-day and gone
    to-morrow"--Fatal effect of State control--Inefficiency
    and powerlessness of Congress--Destitution of the troops:
    "our sick naked and well naked"--Officers resign, privates
    desert--The harsh discipline required: men whipped, hanged,
    and shot--Impression on Marshall--He is promoted to
    be captain-lieutenant--The march through disaffected
    Philadelphia--Marshall one of picked men forming the
    light infantry--Iron Hill--The battle of the Brandywine--
    Marshall's father and his Virginians prevent entire
    disaster--Marshall's part in the battle--The retreat--
    The weather saves the Americans--Marshall one of rear guard
    under Wayne--The army recovers and tries to stop the British
    advance--Confused by false reports of the country people who
    are against the patriots "almost to a man"--Philadelphia
    falls--The battle of Germantown--Marshall at the bloodiest
    point of the fight--The retreat of the beaten Americans--
    Unreasonable demands of "public opinion"--Further decline
    of American fortunes--Duché's letter to Washington:
    "How fruitless the expense of blood"--Washington faces the
    British--The impending battle--Marshall's vivid description--
    The British withdraw.

  IV. VALLEY FORGE AND AFTER                                       108

    The bitter winter of 1777--The British in Philadelphia:
    abundance of provisions, warm and comfortable quarters,
    social gayeties, revels of officers and men--The Americans
    at Valley Forge, "the most celebrated encampment in the
    world's history": starvation and nakedness--Surgeon Waldo's
    diary of "camp-life": "I'll live like a Chameleon upon
    Air"--Waldo's description of soldiers' appearance--Terrible
    mortality from sickness--The filthy "hospitals"--Moravians
    at Bethlehem--The Good Samaritans to the patriots--Marshall's
    cheerfulness: "the best tempered man I ever knew"--His pranks
    and jokes--Visitors to the camp remark his superior
    intelligence--Settles disputes of his comrades--Hard
    discipline at Valley Forge: a woman given a hundred lashes--
    Washington alone holds army together--Jealousy of and
    shameful attacks upon him--The "Conway Cabal"--His dignity in
    the face of slander--His indignant letter to Congress--Faith
    of the soldiers in Washington--The absurd popular demand that
    he attack Philadelphia--The amazing inferiority of Congress--
    Ablest men refuse to attend--Washington's pathetic letter on
    the subject: "Send your ablest men to Congress; Where is
    Jefferson"--Talk of the soldiers at Valley Forge--Jefferson
    in the Virginia Legislature--Comparison of Marshall and
    Jefferson at this period--Marshall appointed Deputy Judge
    Advocate of the army--Burnaby's appeal to Washington to stop
    the war: efforts at reconciliation--Washington's account of
    the sufferings of the army--The spring of 1778--Sports in
    camp--Marshall the best athlete in his regiment: "Silver
    Heels" Marshall--The Alliance with the King of France--
    Rejoicing of the Americans at Valley Forge--Washington has
    misgivings--The services of Baron von Steuben--Lord Howe's
    departure--The "Mischianza"--The British evacuate
    Philadelphia--The Americans quick in pursuit--The battle of
    Monmouth--Marshall in the thick of the fight--His fairness to
    Lee--Promoted to be captain--One of select light infantry
    under Wayne, assigned to take Stony Point--The assault of
    that stronghold--Marshall in the reserve command--One of the
    picked men under "Light Horse Harry" Lee--The brilliant dash
    upon Powles Hook--Term of enlistment of Marshall's regiment
    expires and he is left without a command--Returns to Virginia
    while waiting for new troops to be raised--Arnold invades
    Virginia--Jefferson is Governor; he fails to prepare--Marshall
    one of party to attack the British--Effect of Jefferson's
    conduct on Marshall and the people--Comment of Virginia
    women--Inquiry in Legislature as to Jefferson's conduct--
    Effect of Marshall's army experience on his thinking--The
    roots of his great Nationalist opinions run back to Valley
    Forge.

  V. MARRIAGE AND LAW BEGINNINGS                                   148

    Marshall's romance--Visits his father who is commanding
    at Yorktown--Mythical story of his father's capture at
    Charleston--The Ambler family--Rebecca Burwell, Jefferson's
    early love--Attractiveness of the Amblers--The "ball" at
    Yorktown--High expectations of the young women concerning
    Marshall--Their disappointment at his uncouth appearance and
    rustic manners--He meets Mary Ambler--Mutual love at first
    sight--Her sister's description of the ball and of Marshall--
    The courtship--Marshall goes to William and Mary College for
    a few weeks--Description of the college--Marshall elected to
    the Phi Beta Kappa Society--Attends the law lectures of
    Mr. Wythe--The Ambler daughters pass though Williamsburg--
    The "ball" at "The Palace"--Eliza Ambler's account:
    "Marshall was devoted to my sister"--Marshall leaves college
    and follows Mary Ambler to Richmond--Secures license to
    practice law--Resigns his command--Walks to Philadelphia to
    be inoculated against smallpox--Tavern-keeper refuses to
    take him in because of his appearance--Returns to Virginia
    and resumes his courtship of Mary Ambler--Marshall's account
    of his love-making--His sister-in-law's description of
    Marshall's suit--Marshall's father goes to Kentucky and
    returns--Marshall elected to the Legislature from Fauquier
    County--He marries Mary Ambler: "but one solitary guinea
    left"--Financial condition of Marshall's father at this
    time--Lack of ready money everywhere--Marshall's account--
    He sets up housekeeping in Richmond--Description of Richmond
    at that time--Brilliant bar of the town--"Marshall's slender
    legal equipment"--The notes he made of Mr. Wythe's lectures--
    His Account Book--Examples of his earnings and expenditures
    from 1783 until 1787--Life of the period--His jolly letter to
    Monroe--His books--Elected City Recorder--Marshall's first
    notable case: Hite vs. Fairfax--His first recorded argument--
    His wife becomes an invalid--His tender care of her--Mrs.
    Carrington's account: Marshall "always and under every
    circumstance, an enthusiast in love."

  VI. IN THE LEGISLATURE AND COUNCIL OF STATE                      200

    In the House of Delegates--The building where the Legislature
    met--Costumes and manners of the members---Marshall's
    popularity and his father's influence secure his election--
    He is appointed on important committees--His first vote--
    examples of legislative business--Poor quality of the
    Legislature: Madison's disgust, Washington's opinion--
    Marshall's description and remarkable error--He is elected
    member of Council of State--Pendleton criticizes the
    elevation of Marshall--Work as member of Council--Resigns
    from Council because of criticism of judges--Seeks and
    secures reëlection to Legislature from Fauquier County--
    Inaccuracy of accepted account of these incidents--Marshall's
    letter to Monroe stating the facts--Becomes champion of needy
    Revolutionary soldiers--Leads fight for relief of Thomas
    Paine--Examples of temper of the Legislature--Marshall favors
    new Constitution for Virginia--The "Potowmack Company"--Bills
    concerning courts--Reform of the High Court of Chancery--
    The religious controversy--State of religion in Virginia--
    Marshall's languid interest in the subject--Great question
    of the British debts--Long-continued fight over payment or
    confiscation--Marshall steadily votes and works for payment
    of the debts--Effect of this contest on his economic and
    political views--His letter to Monroe--Instability of
    Legislature: a majority of thirty-three changed in two weeks
    to an adverse majority of forty-nine--No National Government--
    Resolution against allowing Congress to lay any tax whatever:
    "May prove destructive of rights and liberties of the
    people"--The debts of the Confederation--Madison's extradition
    bill--Contempt of the pioneers for treaties--Settlers' unjust
    and brutal treatment of the Indians--Struggle over Madison's
    bill--Patrick Henry saves it--Marshall supports it--Henry's
    bill for amalgamation of Indians and whites--Marshall regrets
    its defeat--Anti-National sentiment of the people--Steady
    change in Marshall's ideas--Mercantile and financial interests
    secure the Constitution--Shall Virginia call a Convention to
    ratify it?--Marshall harmonizes differences and Convention is
    called--He is in the first clash over Nationalism.

  VII. LIFE OF THE PEOPLE: COMMUNITY ISOLATION                     250

    The state of the country--A résumé of conditions--Revolutionary
    leaders begin to doubt the people--Causes of this doubt--
    Isolation of communities--Highways and roads--Difficulty and
    danger of travel--The road from Philadelphia to Boston: between
    Boston and New York--Roads in interior of New England, New York,
    Philadelphia, and New Jersey--Jefferson's account of roads from
    Richmond to New York--Traveler lost in the "very thick woods" on
    way from Alexandria to Mount Vernon to visit Washington--Travel
    and transportation in Virginia--Ruinous effect on commerce--
    Chastellux lost on journey to Monticello to visit Jefferson--
    Talleyrand's description of country--Slowness of mails--Three
    weeks or a month and sometimes two months required between
    Virginia and New York--Mail several months in reaching interior
    towns--News that Massachusetts had ratified the Constitution
    eight days in reaching New York--Ocean mail service--letters
    opened by postmasters or carriers--Scarcity of newspapers--
    Their untrustworthiness--Their violent abuse of public men--
    Franklin's denunciation of the press: he advises "the liberty
    of the cudgel" to restrain "the liberty of the press"--
    Jefferson's disgust--The country newspaper: Freneau's "The
    Country Printer"--The scantiness of education--Teachers and
    schools--The backwoodsmen--The source of abnormal American
    individualism--The successive waves of settlers--Their
    ignorance, improvidence, and lack of social ideals--Habits and
    characteristics of Virginians--Jefferson's harsh description
    of them--Food of the people--Their houses--Continuous drinking
    of brandy, rum, and whiskey--This common to whole country--
    Lack of community consciousness--Abhorrence of any National
    Government.

  VIII. POPULAR ANTAGONISM TO GOVERNMENT                           288

    Thomas Paine's "Common Sense"--Its tremendous influence:
    "Government, even in its best state, is but a necessary
    evil"--Popular antagonism to the very idea of government--
    Impossibility of correcting falsehoods told to the people--
    Popular credulity--The local demagogue--North Carolina
    preacher's idea of the Constitution--Grotesque campaign story
    about Washington and Adams--Persistence of political canard
    against Levin Powell--Amazing statements about the Society of
    the Cincinnati: Ædanus Burke's pamphlet; Mirabeau's pamphlet;
    Jefferson's denunciation--Marshall and his father members of
    the Cincinnati--Effect upon him of the extravagant abuse of
    this patriotic order--Popular desire for general division of
    property and repudiation of debts--Madison's bitter comment--
    Jay on popular greed and "impatience of government"--Paper
    money--Popular idea of money--Shays's Rebellion--Marshall's
    analysis of its objects--Knox's report of it--Madison comes
    to the conclusion that "the bulk of mankind" are incapable
    of dealing with weighty subjects--Washington in despair--He
    declares mankind unfit for their own government--Marshall
    also fears that "man is incapable of governing himself"--
    Jefferson in Paris--Effect on his mind of conditions in
    France--His description of the French people--Jefferson
    applauds Shays's Rebellion: "The tree of liberty must be
    refreshed by the blood of patriots and tyrants"--Influence
    of French philosophy on Jefferson--The impotence of Congress
    under the Confederation--Dishonorable conduct of the States--
    Leading men ascribe evil conditions to the people themselves--
    Views of Washington, Jay, and Madison--State Sovereignty the
    shield of turmoil and baseness--Efforts of commercial and
    financial interests produce the Constitution--Madison wants
    a National Government with power of veto on all State laws
    "whatsoever"--Jefferson thinks the Articles of Confederation
    "a wonderfully perfect instrument"--He opposes a "strong
    government"--Is apprehensive of the Constitution--Thinks
    destruction of credit a good thing--Wishes America "to stand
    with respect to Europe precisely on the footing of China"--
    The line of cleavage regarding the Constitution--Marshall for
    the Constitution.

  IX. THE STRUGGLE FOR RATIFICATION                                319

    The historic Convention of 1788 assembles--Richmond at that
    time--General ignorance of the Constitution--Even most members
    of the Convention poorly informed--Vague popular idea of
    Constitution as something foreign, powerful, and forbidding--
    People in Virginia strongly opposed to it--The Virginia debate
    to be the greatest ever held over the Constitution--The
    revolutionary character of the Constitution: would not have
    been framed if the people had known of the purposes of the
    Federal Convention at Philadelphia: "A child of fortune"--
    Ratification hurried--Pennsylvania Convention: hastily called,
    physical violence, small number of people vote at election of
    members to Pennsylvania Convention--People's ignorance of the
    Constitution--Charges of the opposition--"The humble address
    of the low born"--Debate in Pennsylvania Convention--Able
    "Address of Minority"--Nationalism of the Constitution the
    principal objection--Letters of "Centinel": the Constitution
    "a spurious brat"--Attack on Robert Morris--Constitutionalist
    replies: "Sowers of sedition"--Madison alarmed--The struggle
    in Massachusetts--Conciliatory tactics of Constitutionalists--
    Upper classes for Constitution--Common people generally
    opposed--Many towns refuse to send delegates to the
    Convention--Contemporary descriptions of the elections--
    High ability and character of Constitutionalist members--
    Self-confessed ignorance and incapacity of opposition: Madison
    writes that there is "Scarcely a man of respectability among
    them"--Their pathetic fight against the Constitution--Examples
    of their arguments--The bargain with Hancock secures enough
    votes to ratify--The slender majority: one hundred and
    sixty-eight vote against ratification--Methods of
    Constitutionalists after ratification--Widgery's amusing
    account: hogsheads of rum--Gerry's lament--Bribery charged--
    New Hampshire almost rejects Constitution--Convention adjourned
    to prevent defeat--"Little information among the people," but
    most "men of property and abilities" for Constitution--
    Constitution receives no deliberate consideration until debated
    in the Virginia Convention--Notable ability of the leaders of
    both sides in the Virginia contest.

  X. IN THE GREAT CONVENTION                                       357

    Virginia the deciding State--Anxiety of Constitutionalists
    in other States--Hamilton writes Madison: "No hope unless
    Virginia ratifies"--Economic and political importance of
    Virginia--Extreme effort of both sides to elect members to the
    Convention--Preëlection methods of the Constitutionalists--
    They capture Randolph--Marshall elected from opposition
    constituency--Preëlection methods of Anti-Constitutionalists--
    The Convention meets--Neither side sure of a majority--
    Perfect discipline and astute Convention tactics of the
    Constitutionalists--They secure the two powerful offices
    of the Convention--The opposition have no plan of action--
    Description of George Mason--His grave error in parliamentary
    tactics--Constitutionalists take advantage of it: the
    Constitution to be debated clause by clause--Analysis of the
    opposing forces: an economic class struggle, Nationalism
    against provincialism--Henry tries to remedy Mason's mistake--
    Pendleton speaks and the debate begins--Nicholas speaks--His
    character and personal appearance--Patrick Henry secures the
    floor--Description of Henry--He attacks the Constitution:
    why "_we the people_ instead of _we_ the States"? Randolph
    replies--His manner and appearance--His support of the
    Constitution surprises the opposition--His speech--His
    about-face saves the Constitution--The Clinton letter: if
    Randolph discloses it the Anti-Constitutionalists will win--
    He keeps it from knowledge of the Convention--Decisive
    importance of Randolph's action--His change ascribed to
    improper motives--Mason answers Randolph and again makes
    tactical error--Madison fails to speak--Description of Edmund
    Pendleton--He addresses the Convention: "the war is between
    government and licentiousness"--"Light Horse Harry" Lee--The
    ermine and the sword--Henry secures the floor--His great
    speech: the Constitution "a revolution as radical as that
    which separated us from Great Britain"--The proposed National
    Government something foreign and monstrous--"This government
    is not a Virginian but an American government"--Marshall
    studies the arguments and methods of the debaters--Randolph
    answers Henry: "I am a child of the Revolution"--His error
    concerning Josiah Philips--His speech ineffective--Description
    of James Madison--He makes the first of his powerful
    expositions of the Constitution, but has little or no effect
    on the votes of the members--Speech of youthful Francis
    Corbin--Randolph's futile effort--Madison makes the second
    of his masterful speeches--Henry replies--His wonderful art--
    He attacks Randolph for his apostasy--He closes the first
    week's debate with the Convention under his spell.

  XI. THE SUPREME DEBATE                                           401

    Political managers from other States appear--Gouverneur
    Morris and Robert Morris for the Constitutionalists and
    Eleazer Oswald for the opposition--Morris's letter:
    "depredations on my purse"--Grayson's letter: "our affairs
    suspended by a thread"--Opening second week of the debate--
    The New Academy crowded--Henry resumes his speech--Appeals
    to the Kentucky members, denounces secrecy of Federal
    Convention, attacks Nationalism--Lee criticizes lobbying
    "out of doors" and rebukes Henry--Randolph attacks Henry:
    "If our friendship must fall, _let it fall like Lucifer,
    never to rise again_"--Randolph challenges Henry: a duel
    narrowly averted--Personal appearance of James Monroe--
    He speaks for the Revolutionary soldiers against the
    Constitution and makes no impression--Marshall put forward
    by the Constitutionalists--Description of him: badly dressed,
    poetic-looking, "habits convivial almost to excess"--
    Best-liked man in the Convention; considered an orator--
    Marshall's speech: Constitutionalists the "firm friends of
    liberty"; "we, sir, idolize democracy"; only a National
    Government can promote the general welfare--Marshall's
    argument his first recorded expression on the Constitution--
    Most of speech on necessity of providing against war and
    inspired by his military experience--Description of Benjamin
    Harrison--Mason attacks power of National taxation and sneers
    at the "well-born"--He denounces Randolph--Lee answers with
    a show of anger--William Grayson secures the floor--His
    character, attainments, and appearance--His learned and
    witty speech: "We are too young to know what we are good
    for"--Pendleton answers: "government necessary to protect
    liberty"--Madison makes his fourth great argument--Henry
    replies: "the tyranny of Philadelphia [National Government]
    may be like the tyranny of George III, a horrid, wretched,
    dreadful picture"; Henry's vision of the West--Tremendous
    effect on the Convention--Letter of Gouverneur Morris to
    Hamilton describing the Convention--Madison's report to
    Hamilton and to Washington: "the business is in the most
    ticklish state that can be imagined"--Marshall speaks again--
    Military speech: "_United we are strong, divided we fall_"--
    Grayson answers Marshall--Mason and Henry refer to "vast
    speculations": "we may be taxed for centuries to give
    advantage to rapacious speculators"--Grayson's letter to
    Dane--The advantage with the Anti-Constitutionalists at the
    end of the second week.

  XII. THE STRATEGY OF VICTORY                                     444

    The climax of the fight--The Judiciary the weakest point for
    the Constitutionalists--Reasons for this--Especially careful
    plans of the Constitutionalists for this part of the debate--
    Pendleton expounds the Judiciary clause--Mason attacks it--
    His charge as to secret purpose of many Constitutionalists--
    His extreme courtesy causes him again to make a tactical
    error--He refers to the Fairfax grant--A clever appeal to
    members from the Northern Neck--Madison's distinguished
    address--Henry answers Madison--His thrilling speech: "Old
    as I am, it is probable I may yet have the appellation of
    _rebel_. As to this government [the Constitution] I despise
    and abhor it"--Marshall takes the floor--Selected by the
    Constitutionalists to make the principal argument for the
    Judiciary clause--His speech prepared--The National Judiciary
    "will benefit collective Society"; National Courts will be
    as fair as State Courts; independence of judges necessary;
    if Congress should pass an unconstitutional law the National
    Courts "_would declare it void_"; they alone the only
    "protection from an infringement of the Constitution";
    State courts "crowded with suits which the life of man will
    not see determined"; National Courts needed to relieve this
    congestion; under the Constitution, States cannot be sued
    in National Courts; the Constitution does not exclude trial
    by jury: "Does the word _court_ only mean the judges?";
    comparison with the Judiciary establishment of Virginia;
    reply to Mason's argument on the Fairfax title; "what
    security have you for justice? The independence of your
    Judiciary!"--Marshall's speech unconnected and discursive,
    but the Constitutionalists rest their case upon it--Madison's
    report to Hamilton: "If we can weather the storm against the
    Judiciary I shall hold the danger to be pretty well over"--
    Anti-Constitutionalists try to prolong debate until meeting
    of Legislature which is strongly against the Constitution--
    Secession threatened--Madison's letter to Hamilton--Contest
    so close that "ordinary casualties may vary the result"--
    Henry answers Marshall--His compliment to the young lawyer--
    His reference to the Indians arouses Colonel Stephen who
    harshly assails Henry--Nicholas insults Henry, who demands
    an explanation--Debate draws to a close--Mason intimates
    forcible resistance to the Constitution--Lee rebukes him--
    The Constitutionalists forestall Henry and offer amendments--
    Henry's last speech: "Nine-tenths of the people" against
    the Constitution; Henry's vision of the future; a sudden
    and terrific storm aids his dramatic climax; members and
    spectators in awe--The Legislature convenes--Quick, resolute
    action of the Constitutionalists--Henry admits defeat--The
    Virginia amendments--Absurdity of some of them--Necessary
    to secure ratification--Marshall on the committee to report
    amendments--Constitutionalists win by a majority of only
    ten--Of these, two vote against their instructions and eight
    vote against the well-known desires of their constituents--
    The Clinton letter at last disclosed--Mason's wrath--Henry
    prevents Anti-Constitutionalists from talking measures to
    resist the new National Government--Washington's account:
    "Impossible for anybody not on the spot to conceive what the
    delicacy and danger of our situation have been."

  APPENDIX                                                         481
      I. WILL OF THOMAS MARSHALL, "CARPENTER"                      483
     II. WILL OF JOHN MARSHALL "OF THE FOREST"                     485
    III. DEED OF WILLIAM MARSHALL TO JOHN MARSHALL "OF THE FOREST" 487
     IV. MEMORIAL OF THOMAS MARSHALL FOR MILITARYE MOLUMENTS       489

  WORKS CITED IN THIS VOLUME                                       491




ILLUSTRATIONS


  JOHN MARSHALL AT 43                           _Colored Frontispiece_

    From a miniature painted on ivory by an unknown artist. It was
    executed in Paris in 1797-98, when Marshall was there on the X. Y.
    Z. Mission. It is now in the possession of Miss Emily Harvie, of
    Richmond, Virginia. It is the only portrait in existence of
    Marshall at this period of his life and faithfully portrays him as
    he was at the time of his intellectual duel with Talleyrand.

  COLONEL WILLIAM RANDOLPH                                          10

    From a copy in the possession of Mr. Douglas H. Thomas, of
    Baltimore, after the original portrait in the possession of Mr.
    Edward C. Mayo, of Richmond. The painter of the original is
    unknown. It was painted about 1673 and has passed down through
    successive generations of the family. Mr. Thomas's copy is a
    faithful one, and has been used for reproduction here because the
    original is not sufficiently clear and distinct for the purpose.

  MARY ISHAM RANDOLPH, WIFE OF COLONEL WILLIAM RANDOLPH             10

    From a copy in the possession of Mr. Douglas H. Thomas, of
    Baltimore, after the original in the possession of Miss Anne
    Mortimer Minor. The original portrait was painted about 1673 by an
    unknown artist. It is incapable of satisfactory reproduction.

  COLONEL THOMAS MARSHALL, THE FATHER OF JOHN MARSHALL              14

    From a portrait in the possession of Charles Edward Marshall, of
    Glen Mary, Kentucky. This is the only portrait or likeness of any
    kind in existence of John Marshall's father. It was painted at
    some time between 1790 and 1800 and was inherited by Charles
    Edward Marshall from his parents, Charles Edward and Judith
    Langhorne Marshall. The name of the painter of this unusual
    portrait is not known.

  MARY RANDOLPH (KEITH) MARSHALL, WIFE OF THOMAS MARSHALL AND
  MOTHER OF JOHN MARSHALL                                           18

    From a portrait in the possession of Miss Sallie Marshall, of
    Leeds, Virginia. The portrait was painted at some time between
    1790 and 1800, but the painter's name is unknown. The reproduction
    is from a photograph furnished by Mr. Douglas H. Thomas.

  "THE HOLLOW"                                                      36

    The Blue Ridge home of the Marshall family where John Marshall
    lived from early childhood to his eighteenth year. The house is
    situated on a farm at Markham, Va. From a photograph.

  OAK HILL                                                          56

    From a water-color in the possession of Mr. Thomas Marshall Smith,
    of Baltimore. The small house at the rear of the right of the main
    building was the original dwelling, built by John Marshall's
    father in 1773. The Marshall family lived here until after the
    Revolution. The large building was added nearly forty years
    afterward by Thomas Marshall, son of the Chief Justice. The name
    of the painter is unknown.

  OAK HILL                                                          64

    This is the original house, built in 1773 and carefully kept in
    repair. The brick pavement is a modern improvement. From a
    photograph.

  FACSIMILE OF THE LAST PAGE OF A LETTER FROM JOHN MARSHALL TO
  HIS WIFE, DESCRIBING THEIR COURTSHIP                             152

    This letter was written at Washington, February 23, 1824,
    forty-one years after their marriage. No part of it has ever
    before been published.

  MARY AMBLER MARSHALL, THE WIFE OF JOHN MARSHALL                  168

    A crayon drawing from the original painting now in the possession
    of Mrs. Carroll, a granddaughter of John Marshall, living at Leeds
    Manor, Va. This is the only painting of Mrs. Marshall in existence
    and the name of the artist is unknown.

  RICHMOND IN 1800                                                 184

    From a painting in the rooms of the Virginia Historical Society.

  FACSIMILE OF A PAGE OF MARSHALL'S ACCOUNT BOOK, MAY, 1787        198

    In this book Marshall kept his accounts of receipts and expenses
    for twelve years after his marriage in 1783. In the first part of
    it he also recorded his notes of law lectures during his brief
    attendance at William and Mary College. The original volume is
    owned by Mrs. John K. Mason, of Richmond.

  FACSIMILES OF SIGNATURES OF JOHN MARSHALL AT TWENTY-NINE AND
  FORTY-TWO AND OF THOMAS MARSHALL                                 210

    These signatures are remarkable as showing the extreme
    dissimilarity between the signature of Marshall as a member of the
    Council of State before he was thirty and his signature in his
    mature manhood, and also as showing the basic similarity between
    the signatures of Marshall and his father. The signature of
    Marshall as a member of the Council of State in 1784 is from the
    original minutes of the Council in the Archives of the Virginia
    State Library. His 1797 signature is from a letter to his wife,
    the original of which is in the possession of Miss Emily Harvie,
    of Richmond. The signature of Thomas Marshall is from the original
    roster of the officers of his regiment in the Manuscripts Division
    of the Library of Congress.

  FACSIMILE OF THE FIRST PAGE OF A LETTER FROM MARSHALL TO JAMES
  MONROE, APRIL 17, 1784                                           212

    From the original in the Manuscript Division of the New York
    Public Library. This letter has never before been published. It is
    extremely important in that it corrects extravagant errors
    concerning Marshall's resignation from the Council of State and
    his reëlection to the legislature.

  JOHN MARSHALL                                                    294

    From a profile drawing by Charles Balthazar Julien Fèvre de Saint
    Mémin, in the possession of Miss Emily Harvey of Richmond, Va., a
    granddaughter of John Marshall. Autograph from manuscript
    collection in the Library of the Boston Athenæum.

  GEORGE WYTHE                                                     368

    From an engraving by J. B. Longacre after a portrait by an unknown
    painter in the possession of the Virginia State Library. George
    Wythe was Professor of Law at William and Mary College during
    Marshall's brief attendance.

  JOHN MARSHALL                                                    420

    From a painting by J. B. Martin in the Robe Room of the Supreme
    Court of the United States, Washington, D.C.

  PATRICK HENRY                                                    470

    From a copy (in the possession of the Westmoreland Club, of
    Richmond) of the portrait by Thomas Sully. Sully, who never saw
    Patrick Henry himself, painted the portrait from a miniature on
    ivory done by a French artist in Richmond about 1792. John
    Marshall, under date of December 30, 1816, attested its excellence
    as follows: "I have been shown a painting of the late Mr. Henry,
    painted by Mr. Sully, now in possession of Mr. Webster, which I
    think a good likeness."




LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED

  _All references here are to the List of Authorities at the end of
  this volume._


Beard: _Econ. I. C._ _See_ Beard, Charles A. Economic Interpretation of
the Constitution of the United States.

Beard: _Econ. O. J. D._ _See_ Beard, Charles A. Economic Origins of
Jeffersonian Democracy.

Bruce: _Econ._ _See_ Bruce, Philip Alexander. Economic History of
Virginia in the Seventeeth Century.

Bruce: _Inst._ _See_ Bruce, Philip Alexander. Institutional History of
Virginia in the Seventeeth Century.

_Cor. Rev._: Sparks. _See_ Sparks, Jared. Correspondence of the
Revolution.

Eckenrode: _R. V._ _See_ Eckenrode, H. J. The Revolution in Virginia.

Eckenrode: _S. of C. and S._ _See_ Eckenrode, H. J. Separation of Church
and State in Virginia.

Jefferson's _Writings_: Washington. _See_ Jefferson, Thomas. Writings.
Edited by H. A. Washington.

Monroe's _Writings_: Hamilton. _See_ Monroe, James. Writings. Edited by
Stanislaus Murray Hamilton.

_Old Family Letters._ _See_ Adams, John. Old Family Letters. Edited by
Alexander Biddle.

Wertenbaker: _P. and P._ _See_ Wertenbaker, Thomas J. Patrician and
Plebeian in Virginia; or the Origin and Development of the Social
Classes of the Old Dominion.

Wertenbaker: _V. U. S._ _See_ Wertenbaker, Thomas J. Virginia Under the
Stuarts, 1607-1688.

_Works_: Adams. _See_ Adams, John. Works. Edited by Charles Francis
Adams.

_Works_: Ford. _See_ Jefferson, Thomas. Works. Federal Edition. Edited
by Paul Leicester Ford.

_Works_: Hamilton. _See_ Hamilton, Alexander. Works. Edited by John C.
Hamilton.

_Works_: Lodge. _See_ Hamilton, Alexander. Works. Federal Edition.
Edited by Henry Cabot Lodge.

_Writings_: Conway. _See_ Paine, Thomas. Writings. Edited by Moncure
Daniel Conway.

_Writings_: Ford. _See_ Washington, George. Writings. Edited by
Worthington Chauncey Ford.

_Writings_: Hunt. _See_ Madison, James. Writings. Edited by Gaillard
Hunt.

_Writings_: Smyth. _See_ Franklin, Benjamin. Writings. Edited by Albert
Henry Smyth.

_Writings_: Sparks. _See_ Washington, George. Writings. Edited by Jared
Sparks.




THE LIFE OF JOHN MARSHALL




THE LIFE OF JOHN MARSHALL




CHAPTER I

ANCESTRY AND ENVIRONMENT

    Often do the spirits of great events stride on before the events
    and in to-day already walks to-morrow. (Schiller.)

    I was born an American; I will live an American; I shall die an
    American. (Webster.)


"The British are beaten! The British are beaten!" From cabin to cabin,
from settlement to settlement crept, through the slow distances, this
report of terror. The astounding news that Braddock was defeated finally
reached the big plantations on the tidewater, and then spread dismay and
astonishment throughout the colonies.

The painted warriors and the uniformed soldiers of the French-Indian
alliance had been growing bolder and bolder, their ravages ever more
daring and bloody.[1] Already the fear of them had checked the thin wave
of pioneer advance; and it seemed to the settlers that their hereditary
enemies from across the water might succeed in confining British
dominion in America to the narrow strip between the ocean and the
mountains. For the royal colonial authorities had not been able to cope
with their foes.[2]

But there was always the reserve power of Great Britain to defend her
possessions. If only the home Government would send an army of British
veterans, the colonists felt that, as a matter of course, the French and
Indians would be routed, the immigrants made safe, and the way cleared
for their ever-swelling thousands to take up and people the lands beyond
the Alleghanies.

So when at last, in 1755, the redoubtable Braddock and his red-coated
regiments landed in Virginia, they were hailed as deliverers. There
would be an end, everybody said, to the reign of terror which the
atrocities of the French and Indians had created all along the border.
For were not the British grenadiers invincible? Was not Edward Braddock
an experienced commander, whose bravery was the toast of his fellow
officers?[3] So the colonists had been told, and so they believed.

They forgave the rudeness of their British champions; and Braddock
marched away into the wilderness carrying with him the unquestioning
confidence of the people.[4] It was hardly thought necessary for any
Virginia fighting men to accompany him; and that haughty, passionate
young Virginia soldier, George Washington (then only twenty-three years
of age, but already the chief military figure of the Old Dominion), and
his Virginia rangers were invited to accompany Braddock more because
they knew the country better than for any real aid in battle that was
expected of them. "I have been importuned," testifies Washington, "to
make this campaign by General Braddock, ... conceiving ... that the ...
knowledge I have ... of the country, Indians, &c. ... might be useful to
him."[5]

So through the ancient and unbroken forests Braddock made his slow and
painful way.[6] Weeks passed; then months.[7] But there was no
impatience, because everybody knew what would happen when his scarlet
columns should finally meet and throw themselves upon the enemy. Yet
this meeting, when it came, proved to be one of the lesser tragedies of
history, and had a deep and fateful effect upon American public opinion
and upon the life and future of the American people.[8]

Time has not dulled the vivid picture of that disaster. The golden
sunshine of that July day; the pleasant murmur of the waters of the
Monongahela; the silent and somber forests; the steady tramp, tramp of
the British to the inspiriting music of their regimental bands playing
the martial airs of England; the bright uniforms of the advancing
columns giving to the background of stream and forest a touch of
splendor; and then the ambush and surprise; the war-whoops of savage
foes that could not be seen; the hail of invisible death, no pellet of
which went astray; the pathetic volleys which the doomed British troops
fired at hidden antagonists; the panic; the rout; the pursuit; the
slaughter; the crushing, humiliating defeat![9]

Most of the British officers were killed or wounded as they vainly tried
to halt the stampede.[10] Braddock himself received a mortal hurt.[11]
Raging with battle lust, furious at what he felt was the stupidity and
cowardice of the British regulars,[12] the youthful Washington rode
among the fear-frenzied Englishmen, striving to save the day. Two horses
were shot under him. Four bullets rent his uniform.[13] But, crazed with
fright, the Royal soldiers were beyond human control.

Only the Virginia rangers kept their heads and their courage. Obeying
the shouted orders of their young commander, they threw themselves
between the terror-stricken British and the savage victors; and,
fighting behind trees and rocks, were an ever-moving rampart of fire
that saved the flying remnants of the English troops. But for Washington
and his rangers, Braddock's whole force would have been annihilated.[14]
Colonel Dunbar and his fifteen hundred British regulars, who had been
left a short distance behind as a reserve, made off to Philadelphia as
fast as their panic-winged feet could carry them.[15]

So everywhere went up the cry, "The British are beaten!" At first rumor
had it that the whole force was destroyed, and that Washington had been
killed in action.[16] But soon another word followed hard upon this
error--the word that the boyish Virginia captain and his rangers had
fought with coolness, skill, and courage; that they alone had prevented
the extinction of the British regulars; that they alone had come out of
the conflict with honor and glory.

Thus it was that the American colonists suddenly came to think that they
themselves must be their own defenders. It was a revelation, all the
more impressive because it was so abrupt, unexpected, and dramatic, that
the red-coated professional soldiers were not the unconquerable warriors
the colonists had been told that they were.[17] From colonial "mansion"
to log cabin, from the provincial "capitals" to the mean and exposed
frontier settlements, Braddock's defeat sowed the seed of the idea that
Americans must depend upon themselves.[18]

As Bacon's Rebellion at Jamestown, exactly one hundred years before
Independence was declared at Philadelphia, was the beginning of the
American Revolution in its first clear expression of popular rights,[19]
so Braddock's defeat was the inception of that same epoch in its lesson
of American military self-dependence.[20] Down to Concord and Lexington,
Great Bridge and Bunker Hill, the overthrow of the King's troops on the
Monongahela in 1755 was a theme of common talk among men, a household
legend on which American mothers brought up their children.[21]

Close upon the heels of this epoch-making event, John Marshall came into
the world. He was born in a little log cabin in the southern part of
what now is Fauquier County, Virginia (then a part of Prince William),
on September 24, 1755,[22] eleven weeks after Braddock's defeat. The
Marshall cabin stood about a mile and a half from a cluster of a dozen
similar log structures built by a handful of German families whom
Governor Spotswood had brought over to work his mines. This little
settlement was known as Germantown, and was practically on the
frontier.[23]

Thomas Marshall, the father of John Marshall, was a close friend of
Washington, whom he ardently admired. They were born in the same county,
and their acquaintance had begun, apparently, in their boyhood.[24]
Also, as will presently appear, Thomas Marshall had for about three
years been the companion of Washington, when acting as his assistant in
surveying the western part of the Fairfax estate.[25] From that time
forward his attachment to Washington amounted to devotion.[26]

Also, he was, like Washington, a fighting man.[27] It seems strange,
therefore, that he did not accompany his hero in the Braddock
expedition. There is, indeed, a legend that he did go part of the
way.[28] But this, like so many stories concerning him, is untrue.[29]
The careful roster, made by Washington of those under his command,[30]
does not contain the name of Thomas Marshall either as officer or
private. Because of their intimate association it is certain that
Washington would not have overlooked him if he had been a member of that
historic body of men.

So, while the father of John Marshall was not with his friend and leader
at Braddock's defeat, no man watched that expedition with more care,
awaited its outcome with keener anxiety, or was more affected by the
news, than Thomas Marshall. Beneath no rooftree in all the colonies,
except, perhaps, that of Washington's brother, could this capital event
have made a deeper impression than in the tiny log house in the forests
of Prince William County, where John Marshall, a few weeks afterwards,
first saw the light of day.

Wars and rumors of wars, ever threatening danger, and stern, strong,
quiet preparation to meet whatever befell--these made up the moral and
intellectual atmosphere that surrounded the Marshall cabin before and
after the coming of Thomas and Mary Marshall's first son. The earliest
stories told this child of the frontier[31] must have been those of
daring and sacrifice and the prevailing that comes of them.

Almost from the home-made cradle John Marshall was taught the idea of
American solidarity. Braddock's defeat, the most dramatic military event
before the Revolution,[32] was, as we have seen, the theme of fireside
talk; and from this grew, in time, the conviction that Americans, if
united,[33] could not only protect their homes from the savages and the
French, but defeat, if need be, the British themselves.[34] So thought
the Marshalls, father and mother; and so they taught their children, as
subsequent events show.

It was a remarkable parentage that produced this child who in manhood
was to become the master-builder of American Nationality. Curiously
enough, it was exactly the same mingling of human elements that gave to
the country that great apostle of the rights of man, Thomas Jefferson.
Indeed, Jefferson's mother and Marshall's grandmother were first
cousins. The mother of Thomas Jefferson was Jane Randolph, daughter of
Isham Randolph of Turkey Island; and the mother of John Marshall was
Mary Randolph Keith, the daughter of Mary Isham Randolph, whose father
was Thomas Randolph of Tuckahoe, the brother of Jefferson's maternal
grandfather.

Thus, Thomas Jefferson was the great-grandson and John Marshall the
great-great-grandson of William Randolph and Mary Isham. Perhaps no
other couple in American history is so remarkable for the number of
distinguished descendants. Not only were they the ancestors of Thomas
Jefferson and John Marshall, but also of "Light Horse Harry" Lee,
of Revolutionary fame, Edmund Randolph, Washington's first
Attorney-General, John Randolph of Roanoke, George Randolph, Secretary
of War under the Confederate Government, and General Robert E. Lee, the
great Southern military leader of the Civil War.[35]

The Virginia Randolphs were one of the families of that proud colony who
were of undoubted gentle descent, their line running clear and unbroken
at least as far back as 1550. The Ishams were a somewhat older family,
their lineage being well established to 1424. While knighthood was
conferred upon one ancestor of Mary Isham, the Randolph and Isham
families were of the same social stratum, both being of the English
gentry.[36] The Virginia Randolphs were brilliant in mind, physically
courageous, commanding in character, generally handsome in person, yet
often as erratic as they were gifted.

[Illustration: COLONEL WILLIAM RANDOLPH]

[Illustration: MARY ISHAM RANDOLPH]

When the gentle Randolph-Isham blood mingled with the sturdier currents
of the common people, the result was a human product stronger, steadier,
and abler than either. So, when Jane Randolph became the wife of Peter
Jefferson, a man from the grass roots, the result was Thomas Jefferson.
The union of a daughter of Mary Randolph with Thomas Marshall, a man of
the soil and forests, produced John Marshall.[37]

Physically and mentally, Peter Jefferson and Thomas Marshall were much
alike. Both were powerful men of great stature. Both were endowed with
rare intellectuality.[38] Both were hard-working, provident, and
fearless. Even their occupations were the same: both were land
surveyors. The chief difference between them was that, whereas Peter
Jefferson appears to have been a hearty and convivial person,[39]
Thomas Marshall seems to have been self-contained though adventurous,
and of rather austere habits. Each became the leading man of his
county[40] and both were chosen members of the House of Burgesses.[41]

On the paternal side, it is impossible to trace the origin of either
Peter Jefferson[42] or Thomas Marshall farther back than their
respective great-grandfathers, without floundering, unavailingly, in
genealogical quicksands.

Thomas Marshall was the son of a very small planter in Westmoreland
County, Virginia. October 23, 1727, three years before Thomas was born,
his father, John Marshall "of the forest," acquired by deed, from
William Marshall of King and Queen County, two hundred acres of poor,
low, marshy land located on Appomattox Creek.[43] Little as the value of
land in Virginia then was, and continued to be for three quarters of a
century afterwards,[44] this particular tract seems to have been of an
especially inferior quality. The deed states that it is a part of twelve
hundred acres which had been granted to "Jno. Washington & Thos. Pope,
gents ... & by them lost for want of seating."

Here John Marshall "of the forest"[45] lived until his death in 1752,
and here on April 2, 1730, Thomas Marshall was born. During the quarter
of a century that this John Marshall remained on his little farm, he had
become possessed of several slaves, mostly, perhaps, by natural
increase. By his will he bequeaths to his ten children and to his wife
six negro men and women, ten negro boys and girls, and two negro
children. In addition to "one negro fellow named Joe and one negro woman
named Cate" he gives to his wife "one Gray mair named beauty and side
saddle also six hogs also I leave her the use of my land During her
widowhood, and afterwards to fall to my son Thomas Marshall and his
heirs forever."[46] One year later the widow, Elizabeth Marshall, deeded
half of this two hundred acres to her son Thomas Marshall.[47]

Such was the environment of Thomas Marshall's birth, such the property,
family, and station in life of his father. Beyond these facts, nothing
positively is known of the ancestry of John Marshall on his father's
side. Marshall himself traces it no further back than his grandfather.
"My Father, Thomas Marshall, was the eldest son of John Marshall, who
intermarried with a Miss Markham and whose parents migrated from Wales,
and settled in the county of Westmoreland, in Virginia, where my Father
was born."[48]

It is probable, however, that Marshall's paternal great-grandfather was
a carpenter of Westmoreland County. A Thomas Marshall, "carpenter," as
he describes himself in his will, died in that county in 1704. He
devised his land to his son William. A William Marshall of King and
Queen County deeded to John Marshall "of the forest," for five
shillings, the two hundred acres of land in Westmoreland County, as
above stated.[49] The fair inference is that this William was the elder
brother of John "of the forest" and that both were sons of Thomas the
"carpenter."

[Illustration: THOMAS MARSHALL]

Beyond his paternal grandfather or at furthest his great-grandfather,
therefore, the ancestry of John Marshall, on his father's side, is lost
in the fogs of uncertainty.[50] It is only positively known that his
grandfather was of the common people and of moderate means.[51]

Concerning his paternal grandmother, nothing definitely is established
except that she was Elizabeth Markham, daughter of Lewis Markham, once
Sheriff of Westmoreland County.[52]

John Marshall's lineage on his mother's side, however, is long, high,
and free from doubt, not only through the Randolphs and Ishams, as we
have seen, but through the Keiths. For his maternal grandfather was an
Episcopal clergyman, James Keith, of the historic Scottish family of
that name, who were hereditary Earls Marischal of Scotland. The Keiths
had been soldiers for generations, some of them winning great
renown.[53] One of them was James Keith, the Prussian field marshal and
ablest of the officers of Frederick the Great.[54] James Keith, a
younger son of this distinguished family, was destined for the
Church;[55] but the martial blood flowing in his veins asserted itself
and, in his youth, he also became a soldier, upholding with arms the
cause of the Pretender. When that rebellion was crushed, he fled to
Virginia, resumed his sacred calling, returned to England for orders,
came back to Virginia[56] and during his remaining years performed his
priestly duties with rare zeal and devotion.[57] The motto of the Keiths
of Scotland was "Veritas Vincit," and John Marshall adopted it. During
most of his life he wore an amethyst with the ancient Keith motto
engraved upon it.[58]

When past middle life the Scottish parson married Mary Isham
Randolph,[59] granddaughter of William Randolph and Mary Isham. In 1754
their daughter, Mary Randolph Keith, married Thomas Marshall and became
the mother of John Marshall. "My mother was named Mary Keith, she was
the daughter of a clergyman, of the name of Keith, who migrated from
Scotland and intermarried with a Miss Randolph of James River" is
Marshall's comment on his maternal ancestry.[60]

Not only was John Marshall's mother uncommonly well born, but she was
more carefully educated than most Virginia women of that period.[61] Her
father received in Aberdeen the precise and methodical training of a
Scottish college;[62] and, as all parsons in the Virginia of that time
were teachers, it is certain that he carefully instructed his daughter.
He was a deeply religious man, especially in his latter years,--so much
so, indeed, that there was in him a touch of mysticism; and the two
marked qualities of his daughter, Mary, were deep piety and strong
intellectuality. She had, too, all the physical hardiness of her
Scottish ancestry, fortified by the active and useful labor which all
Virginia women of her class at that time performed.

[Illustration: MARY RANDOLPH KEITH MARSHALL (Mrs. Thomas Marshall)]

So Thomas Marshall and Mary Keith combined unusual qualities for the
founding of a family. Great strength of mind both had, and powerful
wills; and through the veins of both poured the blood of daring. Both
were studious-minded, too, and husband and wife alike were seized of a
passion for self-improvement as well as a determination to better their
circumstances. It appears that Thomas Marshall was by nature religiously
inclined;[63] and this made all the greater harmony between himself and
his wife. The physical basis of both husband and wife seems to have been
well-nigh perfect.

Fifteen children were the result of this union, every one of whom lived
to maturity and almost all of whom rounded out a ripe old age. Every one
of them led an honorable and successful life. Nearly all strongly
impressed themselves upon the community in which they lived.

It was a peculiar society of which this prolific and virile family
formed a part, and its surroundings were as strange as the society
itself. Nearly all of Virginia at that time was wilderness,[64] if we
look upon it with the eyes of to-day. The cultivated parts were given
over almost entirely to the raising of tobacco, which soon drew from the
soil its virgin strength; and the land thus exhausted usually was
abandoned to the forest, which again soon covered it. No use was made of
the commonest and most obvious fertilizing materials and methods; new
spaces were simply cleared.[65] Thus came a happy-go-lucky improvidence
of habits and character.

This shiftlessness was encouraged by the vast extent of unused and
unoccupied domain. Land was so cheap that riches measured by that basis
of all wealth had to be counted in terms of thousands and tens of
thousands of acres.[66] Slavery was an even more powerful force making
for a kind of lofty disdain of physical toil among the white
people.[67] Black slaves were almost as numerous as white free men.[68]
On the great plantations the negro quarters assumed the proportions of
villages;[69] and the masters of these extensive holdings were by
example the arbiters of habits and manners to the whole social and
industrial life of the colony. While an occasional great planter was
methodical and industrious,[70] careful and systematic methods were
rare. Manual labor was, to most of these lords of circumstance, not only
unnecessary but degrading. To do no physical work that could be avoided
on the one hand, and on the other hand, to own as many slaves as
possible, was, generally, the ideal of members of the first estate.[71]
This spread to the classes below, until it became a common ambition of
white men throughout the Old Dominion.

While contemporary travelers are unanimous upon this peculiar aspect of
social and economic conditions in old Virginia, the vivid picture drawn
by Thomas Jefferson is still more convincing. "The whole commerce
between master and slave," writes Jefferson, "is a perpetual exercise of
the most boisterous passions, the most unremitting despotism on the one
part, and degrading submissions on the other. Our children see this and
learn to imitate it.... Thus nursed, educated, and daily exercised in
tyranny ... the man must be a prodigy who can retain his manners and
morals undepraved.... With the morals of the people their industry also
is destroyed. For in a warm climate, no man will labour for himself who
can make another labour for him.... Of the proprietors of slaves a very
small proportion indeed are ever seen to labour."[72]

Two years after he wrote his "Notes on Virginia" Jefferson emphasized
his estimate of Virginia society. "I have thought them [Virginians] as
you found them," he writes Chastellux, "aristocratical, pompous,
clannish, indolent, hospitable ... careless of their interests, ...
thoughtless in their expenses and in all their transactions of
business." He again ascribes many of these characteristics to "that
warmth of their climate which unnerves and unmans both body and
mind."[73]

From this soil sprang a growth of habits as noxious as it was luxuriant.
Amusements to break the monotony of unemployed daily existence took the
form of horse-racing, cock-fighting, and gambling.[74] Drinking and all
attendant dissipations were universal and extreme;[75] this, however,
was the case in all the colonies.[76] Bishop Meade tells us that even
the clergy indulged in the prevailing customs to the neglect of their
sacred calling; and the church itself was all but abandoned in the
disrepute which the conduct of its ministers brought upon the house of
God.[77]

Yet the higher classes of colonial Virginians were keen for the
education of their children, or at least of their male offspring.[78]
The sons of the wealthiest planters often were sent to England or
Scotland to be educated, and these, not infrequently, became graduates
of Oxford, Cambridge, and Edinburgh.[79] Others of this class were
instructed by private tutors.[80] Also a sort of scanty and fugitive
public instruction was given in rude cabins, generally located in
abandoned fields. These were called the Old Field Schools.[81]

More than forty per cent of the men who made deeds or served on juries
could not sign their names, although they were of the land-owning and
better educated classes;[82] the literacy of the masses, especially that
of the women,[83] was, of course, much lower.

An eager desire, among the "quality," for reading brought a considerable
number of books to the homes of those who could afford that luxury.[84]
A few libraries were of respectable size and two or three were very
large. Robert Carter had over fifteen hundred volumes,[85] many of which
were in Latin and Greek, and some in French.[86] William Byrd collected
at Westover more than four thousand books in half a dozen languages.[87]
But the Carter and Byrd libraries were, of course, exceptions. Byrd's
library was the greatest, not only in Virginia, but in all the colonies,
except that of John Adams, which was equally extensive and varied.[88]

Doubtless the leisure and wealth of the gentry, created by the peculiar
economic conditions of the Old Dominion, sharpened this appetite for
literature and afforded to the wealthy time and material for the
gratification of it. The passion for reading and discussion persisted,
and became as notable a characteristic of Virginians as was their
dislike for physical labor, their excessive drinking, and their love of
strenuous sport and rough diversion.

There were three social orders or strata, all contemporary observers
agree, into which Virginians were divided; but they merged into one
another so that the exact dividing line was not clear.[89] First, of
course, came the aristocracy of the immense plantations. While the
social and political dominance of this class was based on wealth, yet
some of its members were derived from the English gentry, with, perhaps,
an occasional one from a noble family in the mother country.[90] Many,
however, were English merchants or their sons.[91] It appears, also,
that the boldest and thriftiest of the early Virginia settlers, whom the
British Government exiled for political offenses, acquired extensive
possessions, became large slave-owners, and men of importance and
position. So did some who were indentured servants;[92] and, indeed, an
occasional transported convict rose to prominence.[93]

But the genuine though small aristocratic element gave tone and color to
colonial Virginia society. All, except the "poor whites," looked to this
supreme group for ideals and for standards of manners and conduct.
"People of fortune ... are the pattern of all behaviour here," testifies
Fithian of New Jersey, tutor in the Carter household.[94] Also, it was,
of course, the natural ambition of wealthy planters and those who
expected to become such to imitate the life of the English higher
classes. This was much truer in Virginia than in any other colony; for
she had been more faithful to the Crown and to the royal ideal than had
her sisters. Thus it was that the Old Dominion developed a distinctively
aristocratic and chivalrous social atmosphere peculiar to herself,[95]
as Jefferson testifies.

Next to the dominant class came the lesser planters. These corresponded
to the yeomanry of the mother country; and most of them were from the
English trading classes.[96] They owned little holdings of land from a
few hundred to a thousand and even two thousand acres; and each of these
inconsiderable landlords acquired a few slaves in proportion to his
limited estate. It is possible that a scanty number of this middle class
were as well born as the best born of the little nucleus of the genuine
aristocracy; these were the younger sons of great English houses to whom
the law of primogeniture denied equal opportunity in life with the elder
brother. So it came to pass that the upper reaches of the second estate
in the social and industrial Virginia of that time merged into the
highest class.

At the bottom of the scale, of course, came the poverty-stricken whites.
In eastern Virginia this was the class known as the "poor whites"; and
it was more distinct than either of the two classes above it. These
"poor whites" lived in squalor, and without the aspirations or virtues
of the superior orders. They carried to the extreme the examples of
idleness given them by those in higher station, and coarsened their
vices to the point of brutality.[97] Near this social stratum, though
not a part of it, were classed the upland settlers, who were poor
people, but highly self-respecting and of sturdy stock.

Into this structure of Virginia society Fate began to weave a new and
alien thread about the time that Thomas Marshall took his young bride to
the log cabin in the woods of Prince William County where their first
child was born. In the back country bordering the mountains appeared the
scattered huts of the pioneers. The strong character of this element of
Virginia's population is well known, and its coming profoundly
influenced for generations the political, social, industrial, and
military history of that section. They were jealous of their "rights,"
impatient of restraint, wherever they felt it, and this was seldom.
Indeed, the solitariness of their lives, and the utter self-dependence
which this forced upon them, made them none too tolerant of law in any
form.

These outpost settlers furnished most of that class so well known to our
history by the term "backwoodsmen," and yet so little understood. For
the heroism, the sacrifice, and the suffering of this "advance guard of
civilization" have been pictured by laudatory writers to the exclusion
of its other and less admirable qualities. Yet it was these latter
characteristics that played so important a part in that critical period
of our history between the surrender of the British at Yorktown and the
adoption of the Constitution, and in that still more fateful time when
the success of the great experiment of making out of an inchoate
democracy a strong, orderly, independent, and self-respecting nation was
in the balance.

These American backwoodsmen, as described by contemporary writers who
studied them personally, pushed beyond the inhabited districts to get
land and make homes more easily. This was their underlying purpose; but
a fierce individualism, impatient even of those light and vague social
restraints which the existence of near-by neighbors creates, was a
sharper spur.[98] Through both of these motives, too, ran the spirit of
mingled lawlessness and adventure. The physical surroundings of the
backwoodsman nourished the non-social elements of his character. The log
cabin built, the surrounding patch of clearing made, the seed planted
for a crop of cereals only large enough to supply the household
needs--these almost ended the backwoodsman's agricultural activities and
the habits of regular industry which farming requires.

While his meager crops were coming on, the backwoodsman must supply his
family with food from the stream and forest. The Indians had not yet
retreated so far, nor were their atrocities so remote, that fear of
them had ceased;[99] and the eye of the backwoodsman was ever keen for a
savage human foe as well as for wild animals. Thus he became a man of
the rifle,[100] a creature of the forests, a dweller amid great
silences, self-reliant, suspicious, non-social, and almost as savage as
his surroundings.[101]

But among them sometimes appeared families which sternly held to high
purposes, orderly habits, and methodical industry;[102] and which clung
to moral and religious ideals and practices with greater tenacity than
ever, because of the very difficulties of their situation. These chosen
families naturally became the backbone of the frontier; and from them
came the strong men of the advanced settlements.

Such a figure among the backwoodsmen was Thomas Marshall. Himself a
product of the settlements on the tidewater, he yet was the
personification of that spirit of American advance and enterprise which
led this son of the Potomac lowlands ever and ever westward until he
ended his days in the heart of Kentucky hundreds of miles through the
savage wilderness from the spot where, as a young man, he built his
first cabin home.

This, then, was the strange mingling of human elements that made up
Virginia society during the middle decades of the eighteenth century--a
society peculiar to the Old Dominion and unlike that of any other place
or time. For the most part, it was idle and dissipated, yet also
hospitable and spirited, and, among the upper classes, keenly
intelligent and generously educated. When we read of the heavy drinking
of whiskey, brandy, rum, and heady wine; of the general indolence,
broken chiefly by fox-hunting and horse-racing, among the quality; of
the coarser sport of cock-fighting shared in common by landed gentry and
those of baser condition, and of the eagerness for physical encounter
which seems to have pervaded the whole white population,[103] we wonder
at the greatness of mind and soul which grew from such a social soil.

Yet out of it sprang a group of men who for ability, character, spirit,
and purpose, are not outshone and have no precise counterpart in any
other company of illustrious characters appearing in like space of time
and similar extent of territory. At almost the same point of time,
historically speaking,--within thirty years, to be exact,--and on the
same spot, geographically speaking,--within a radius of a hundred
miles,--George Mason, James Madison, Patrick Henry, Thomas Jefferson,
John Marshall, and George Washington were born. The life stories of
these men largely make up the history of their country while they lived;
and it was chiefly their words and works, their thought and purposes,
that gave form and direction, on American soil, to those political and
social forces which are still working out the destiny of the American
people.


FOOTNOTES:

[1] For instance, the Indians massacred nine families in Frederick
County, just over the Blue Ridge from Fauquier, in June, 1755.
(_Pennsylvania Journal and Weekly Advertiser_, July 24, 1755.)

[2] Marshall, i, 12-13; Campbell, 469-71. "The Colonial contingents were
not nearly sufficient either in quantity or quality." (Wood, 40.)

[3] Braddock had won promotion solely by gallantry in the famous
Coldstream Guards, the model and pride of the British army, at a time
when a lieutenant-colonelcy in that crack regiment sold for £5000
sterling. (Lowdermilk, 97.)

[4] "The British troops had been looked upon as invincible, and
preparations had been made in Philadelphia for the celebration of
Braddock's anticipated victory." (_Ib._, 186.)

[5] Washington to Robinson, April 20, 1755; _Writings_: Ford, i, 147.

[6] The "wild desert country lying between fort Cumberland and fort
Frederick [now the cities of Cumberland and Frederick in Maryland], the
most common track of the Indians, in making their incursions into
Virginia." (Address in the Maryland House of Delegates, 1757, as quoted
by Lowdermilk, 229-30.) Cumberland was "about 56 miles beyond our
[Maryland] settlements." (_Ib._) Cumberland "is far remote from any of
our inhabitants." (Washington to Dinwiddie, Sept. 23, 1756; _Writings_:
Ford, i, 346.) "Will's Creek was on the very outskirts of civilization.
The country beyond was an unbroken and almost pathless wilderness."
(Lowdermilk, 50.)

[7] It took Braddock three weeks to march from Alexandria to Cumberland.
He was two months and nineteen days on the way from Alexandria to the
place of his defeat. (_Ib._, 138.)

[8] "All America watched his [Braddock's] advance." (Wood, 61.)

[9] For best accounts of Braddock's defeat see Bradley, 75-107;
Lowdermilk, 156-63; and Marshall, i, 7-10.

[10] "Of one hundred and sixty officers, only six escaped." (Lowdermilk,
footnote to 175.)

[11] Braddock had five horses killed under him. (_Ib._, 161.)

[12] "The dastardly behavior of the Regular [British] troops," who
"broke and ran as sheep before hounds." (Washington to Dinwiddie, July
18, 1755; _Writings_: Ford, i, 173-74.)

[13] Washington to John A. Washington, July 18, 1755. (_Ib._, 176.)

[14] "The Virginia companies behaved like men and died like soldiers ...
of three companies ... scarce thirty were left alive." (Washington to
Dinwiddie, July 18, 1755; _Writings_: Ford, i, 173-74.)

[15] Lowdermilk, 182-85; and see Washington's _Writings_: Ford, i,
footnote to 175. For account of battle and rout see Washington's letters
to Dinwiddie, _ib._, 173-76; to John A. Washington, July 18, 1755,
_ib._; to Robert Jackson, Aug. 2, 1755, _ib._, 177-78; also see
Campbell, 472-81. For French account see Hart, ii, 365-67; also,
Sargent: _History of Braddock's Expedition_.

[16] Washington to John A. Washington, July 18, 1755; _Writings_: Ford,
i, 175.

[17] "The Defeat of Braddock was totally unlooked for, and it excited
the most painful surprise." (Lowdermilk, 186.)

[18] "After Braddock's defeat, the Colonists jumped to the conclusion
that all regulars were useless." (Wood, 40.)

[19] See Stanard: _Story of Bacon's Rebellion_. Bacon's Rebellion
deserves the careful study of all who would understand the beginnings of
the democratic movement in America. Mrs. Stanard's study is the best
brief account of this popular uprising. See also Wertenbaker: _V. U.
S._, chaps. 5 and 6.

[20] "The news [of Braddock's defeat] gave a far more terrible blow to
the reputation of the regulars than to the British cause [against the
French] itself." (Wood, 61.)

[21] "From that time [Braddock's defeat] forward the Colonists had a
much less exalted opinion of the valor of the royal troops."
(Lowdermilk, 186.) The fact that the colonists themselves had been
negligent and incompetent in resisting the French or even the Indians
did not weaken their newborn faith in their own prowess and their
distrust of British power.

[22] _Autobiography._

[23] Campbell, 494. "It is remarkable," says Campbell, "that as late as
the year 1756, when the colony was a century and a half old, the Blue
Ridge of mountains was virtually the western boundary of Virginia." And
see Marshall, i, 15; also, _New York Review_ (1838), iii, 330. For
frontier settlements, see the admirable map prepared by Marion F.
Lansing and reproduced in Channing, ii.

[24] Humphrey Marshall, i, 344-45. Also Binney, in Dillon, iii, 283.

[25] See _infra_, chap. II.

[26] Humphrey Marshall, i, 344-45.

[27] He was one of a company of militia cavalry the following year,
(Journal, H.B. (1756), 378); and he was commissioned as ensign Aug. 27,
1761. (Crozier: _Virginia Colonial Militia_, 96.) And see _infra_,
chaps, III and IV.

[28] Paxton, 20.

[29] A copy of a letter (MS.) to Thomas Marshall from his sister
Elizabeth Marshall Martin, dated June 15, 1755, referring to the
Braddock expedition, shows that he was at home at this time.
Furthermore, a man of the quality of Thomas Marshall would not have left
his young wife alone in their backwoods cabin at a time so near the
birth of their first child, when there was an overabundance of men eager
to accompany Braddock.

[30] Washington MSS., Lib. Cong.

[31] Simon Kenton, the Indian fighter, was born in the same county in
the same year as John Marshall. (M'Clung: _Sketches of Western
Adventure_, 93.)

[32] Neither the siege of Louisburg nor the capture of Quebec took such
hold on the public imagination as the British disaster on the
Monongahela. Also, the colonists felt, though unjustly, that they were
entitled to as much credit for the two former events as the British.

[33] The idea of unity had already germinated. The year before, Franklin
offered his plan of concerted colonial action to the Albany conference.
(_Writings_: Smyth, i, 387.)

[34] Wood, 38-42.

[35] For these genealogies see Slaughter: _Bristol Parish_, 212; Lee:
_Lee of Virginia_, 406 _et seq._; Randall, i, 6-9; Tucker, i, 26. See
Meade, i, footnote to 138-39, for other descendants of William Randolph
and Mary Isham.

[36] _Va. Mag. Hist. and Biog._, iii, 261; xviii, 86-87.

[37] The curious sameness in the ancestry of Marshall and Jefferson is
found also in the surroundings of their birth. Both were born in log
cabins in the backwoods. Peter Jefferson, father of Thomas, "was the
third or fourth white settler within the space of several miles" of his
cabin home, which he built "in a small clearing in the dense and
primeval forest." (Randall, i, 11.) Here Jefferson was born, April 2,
1743, a little more than twelve years before John Marshall came into the
world, under like conditions and from similar parents.

Peter Jefferson was, however, remotely connected by descent, on his
mother's side, with men who had been burgesses. His maternal
grandfather, Peter Field, was a burgess, and his maternal
great-grandfather, Henry Soane, was Speaker of the House of Burgesses.
But both Peter Jefferson and Thomas Marshall were "of the people" as
distinguished from the gentry.

[38] Morse, 3; and Story, in Dillon, iii, 330.

[39] Randall, i, 7. Peter Jefferson "purchased" four hundred acres of
land from his "bosom friend," William Randolph, the consideration as set
forth in the deed being, "Henry Weatherbourne's biggest bowl of arrack
punch"! (_Ib._)

[40] Peter Jefferson was County Lieutenant of Albemarle. (_Va. Mag,
Hist. and Biog._, xxiii, 173-75.) Thomas Marshall was Sheriff of
Fauquier.

[41] Randall, i, 12-13; and see _infra_, chap. II.

[42] Tucker, i, 26.

[43] Records of Westmoreland County, Deeds and Wills, viii, I, 276.

[44] _Ib._ Seventy years later La Rochefoucauld found land adjoining
Norfolk heavily covered with valuable timber, close to the water and
convenient for shipment, worth only from six to seven dollars an acre.
(La Rochefoucauld, iii, 25.) Virginia sold excellent public land for two
cents an acre three quarters of a century after this deed to John
Marshall "of the forest." (Ambler, 44; and see Turner, Wis. Hist. Soc,
1908, 201.) This same land which William Marshall deeded to John
Marshall nearly two hundred years ago is now valued at only from ten to
twenty dollars an acre. (Letter of Albert Stuart, Deputy Clerk of
Westmoreland County, to author, Aug. 26, 1913.) In 1730 it was probably
worth one dollar per acre.

[45] A term generally used by the richer people in referring to those of
poorer condition who lived in the woods, especially those whose abodes
were some distance from the river. (Statement of W. G. Stanard,
Secretary of the Virginia Historical Society and Dr. H. J. Eckenrode of
Richmond College, and formerly Archivist of the Virginia State Library.)
There were, however, Virginia estates called "The Forest." For example,
Jefferson's father-in-law, John Wayles, a wealthy man, lived in "The
Forest."

[46] Will of John Marshall "of the forest," made April 1, 1752, probated
May 26, 1752, and recorded June 22, 1752; Records of Westmoreland
County, Deeds and Wills, xi, 419 _et seq._ (Appendix II.)

[47] _Ib._, 421.

[48] _Autobiography_. Marshall gives the ancestry of his wife more fully
and specifically. See _infra_, chap. V.

[49] Will of Thomas Marshall, "carpenter," probated May 31, 1704;
Records of Westmoreland County, Deeds and Wills, iii, 232 _et seq._
(Appendix I.)

[50] Most curiously, precisely this is true of Thomas Jefferson's
paternal ancestry.

[51] There is a family tradition that the first of this particular
Marshall family in America was a Royalist Irish captain who fought under
Charles I and came to America when Cromwell prevailed. This may or may
not be true. Certainly no proof of it has been discovered. The late
Wilson Miles Cary, whose authority is unquestioned in genealogical
problems upon which he passed judgment, decided that "the Marshall
family begins absolutely with Thomas Marshall, 'Carpenter.'" (The Cary
Papers, MSS., Va. Hist. Soc. The _Virginia Magazine of History and
Biography_ is soon to publish these valuable genealogical papers.)

Within comparatively recent years, this family tradition has been
ambitiously elaborated. It includes among John Marshall's ancestors
William le Mareschal, who came to England with the Conqueror; the
celebrated Richard de Clare, known as "Strongbow"; an Irish king,
Dermont; Sir William Marshall, regent of the kingdom of England and
restorer of Magna Charta; a Captain John Marshall, who distinguished
himself at the siege of Calais in 1558; and finally, the Irish captain
who fought Cromwell and fled to Virginia as above mentioned. (Paxton, 7
_et seq._)

Senator Humphrey Marshall rejected this story as "a myth supported by
vanity." (_Ib._) Colonel Cary declares that "there is no evidence
whatever in support of it." (Cary Papers, MSS.) Other painstaking
genealogists have reached the same conclusion. (See, for instance,
General Thomas M. Anderson's analysis of the subject in _Va. Mag. Hist.
and Biog._, xii, 328 _et seq._)

Marshall himself, of course, does not notice this legend in his
_Autobiography_; indeed, it is almost certain that he never heard of it.
In constructing this picturesque genealogical theory, the kinship of
persons separated by centuries is assumed largely because of a
similarity of names. This would not seem to be entirely convincing.
There were many Marshalls in Virginia no more related to one another
than the various unrelated families by the name of Smith. Indeed,
_maréchal_ is the French word for a "shoeing smith."

For example, there lived in Westmoreland County, at the same time with
John Marshall "of the forest," another John Marshall, who died intestate
and the inventory of whose effects was recorded March 26, 1751, a year
before John Marshall "of the forest" died. These two John Marshalls do
not seem to have been kinsmen.

The only prominent person in Virginia named Marshall in 1723-34 was a
certain Thomas Marshall who was a member of the colony's House of
Burgesses during this period; but he was from Northampton County.
(Journal, H.B. (1712-23), xi; _ib._ (1727-40), viii, and 174.) He does
not appear to have been related in any way to John "of the forest."

There were numerous Marshalls who were officers in the Revolutionary War
from widely separated colonies, apparently unconnected by blood or
marriage. For instance, there were Abraham, David, and Benjamin Marshall
from Pennsylvania; Christopher Marshall from Massachusetts; Dixon
Marshall from North Carolina; Elihu Marshall from New York, etc.
(Heitman, 285.)

At the same time that John Marshall, the subject of this work, was
captain in a Virginia regiment, two other John Marshalls were captains
in Pennsylvania regiments. When Thomas Marshall of Virginia was an
officer in Washington's army, there were four other Thomas Marshalls,
two from Massachusetts, one from South Carolina, and one from Virginia,
all Revolutionary officers. (_Ib._)

When Stony Point was taken by Wayne, among the British prisoners
captured was Lieutenant John Marshall of the 17th Regiment of British
foot (see Dawson, 86); and Captain John Marshall of Virginia was one of
the attacking force. (See _infra_, chap. IV.)

In 1792, John Marshall of King and Queen County, a boatswain, was a
Virginia pensioner. (_Va. Hist. Prs._, v, 544.) He was not related to
John Marshall, who had become the leading Richmond lawyer of that time.

While Hamilton was Secretary of the Treasury he received several letters
from John Marshall, an Englishman, who was in this country and who wrote
Hamilton concerning the subject of establishing manufactories. (Hamilton
MSS., Lib. Cong.)

Illustrations like these might be continued for many pages. They merely
show the danger of inferring relationship because of the similarity of
names, especially one so general as that of Marshall.

[52] The Cary Papers, _supra_. Here again the Marshall legend riots
fantastically. This time it makes the pirate Blackbeard the first
husband of Marshall's paternal grandmother; and with this freebooter she
is said to have had thrilling and melancholy experiences. It deserves
mention only as showing the absurdity of such myths. Blackbeard was one
Edward Teach, whose career is well authenticated (Wise, 186.) Colonel
Cary put a final quietus on this particular tale, as he did on so many
other genealogical fictions.

[53] See Douglas: _Peerage of Scotland_ (1764), 448. Also Burke:
_Peerage_ (1903), 895; and _ib._ (1876). This peerage is now extinct.
See Burke: _Extinct Peerages_.

[54] For appreciation of this extraordinary man see Carlyle's _Frederick
the Great_.

[55] Paxton, 30.

[56] From data furnished by Justice James Keith, President of the Court
of Appeals of Virginia.

[57] Paxton, 30; and see Meade, ii, 216.

[58] Data furnished by Thomas Marshall Smith of Baltimore, Md.

[59] With this lady the tradition deals most unkindly and in highly
colored pictures. An elopement, the deadly revenge of outraged brothers,
a broken heart and resulting insanity overcome by gentle treatment, only
to be reinduced in old age by a fraudulent Enoch Arden letter apparently
written by the lost love of her youth--such are some of the incidents
with which this story clothes Marshall's maternal grandmother. (Paxton,
25-26.)

[60] _Autobiography._

[61] In general, Virginia women at this time had very little education
(Burnaby, 57.) Sometimes the daughters of prominent and wealthy families
could not read or write. (Bruce: _Inst._, i, 454-55.) Even forty years
after John Marshall was born, there was but one girls' school in
Virginia. (La Rochefoucauld, iii, 227.) In 1789, there were very few
schools of any kind in Virginia, it appears. (Journal, H.B. (Dec. 14,
1789), 130; and see _infra_, chap. VI.)

[62] Paxton, 30. Marischal College, Aberdeen, was founded by George
Keith, Fifth Earl Marischal (1593).

[63] See _infra_, chap. II. When Leeds Parish was organized, we find
Thomas Marshall its leading vestryman. He was always a stanch churchman.

[64] Jones, 35; Burnaby,58. But see Maxwell in _William and Mary College
Quarterly_, xix, 73-103; and see Bruce: _Econ._, i, 425, 427, 585, 587.

[65] "Though tobacco exhausts the land to a prodigious degree, the
proprietors take no pains to restore its vigor; they take what the soil
will give and abandon it when it gives no longer. They like better to
clear new lands than to regenerate the old." (De Warville, 439; and see
Fithian, 140.)

The land produced only "four or five bushels of wheat per acre or from
eight to ten of Indian corn. These fields are never manured, hardly even
are they ploughed; and it seldom happens that their owners for two
successive years exact from them these scanty crops.... The country ...
everywhere exhibits the features of laziness, of ignorance, and
consequently of poverty." (La Rochefoucauld, iii, 106-07, describing
land between Richmond and Petersburg, in 1797; and see Schoepf, ii, 32,
48; and Weld, i, 138, 151.)

[66] Burnaby, 45, 59. The estate of Richard Randolph of Curels, in 1742
embraced "not less than forty thousand acres of the choicest lands."
(Garland, i, 7.) The mother of George Mason bought ten thousand acres in
Loudoun County for an insignificant sum. (Rowland, i, 51.) The Carter
plantation in 1774 comprised sixty thousand acres and Carter owned six
hundred negroes. (Fithian, 128.) Compare with the two hundred acres and
few slaves of John Marshall "of the forest," _supra_.

Half a century later the very best lands in Virginia with valuable mines
upon them sold for only eighteen dollars an acre. (La Rochefoucauld,
iii, 124.) For careful account of the extent of great holdings in the
seventeenth century see Wertenbaker: _P. and P._, 34-35, 97-99.
Jefferson in 1790 owned two hundred slaves and ten thousand acres of
very rich land on the James River. (Jefferson to Van Staphorst, Feb. 28,
1790; _Works_: Ford, vi, 33.) Washington owned enormous quantities of
land, and large numbers of slaves. His Virginia holdings alone amounted
to thirty-five thousand acres. (Beard: _Econ. I. C._, 144.)

[67] Burnaby, 54.

[68] In the older counties the slaves outnumbered the whites; for
instance, in 1790 Westmoreland County had 3183 whites, 4425 blacks, and
114 designated as "all others." In 1782 in the same county 410
slave-owners possessed 4536 slaves and 1889 horses. (_Va. Mag. Hist. and
Biog._, x, 229-36.)

[69] Ambler, 11. The slaves of some planters were valued at more than
thirty thousand pounds sterling. (Fithian, 286; and Schoepf, ii, 38;
also, Weld, i, 148.)

[70] Robert Carter was a fine example of this rare type. (See Fithian,
279-80.)

[71] Burnaby, 53-54 and 59. "The Virginians ... are an indolent haughty
people whose thoughts and designs are directed solely towards p[l]aying
the lord, owning great tracts of land and numerous troops of slaves. Any
man whatever, if he can afford so much as 2-3 [two or three] negroes,
becomes ashamed of work, and goes about in idleness, supported by his
slaves." (Schoepf, ii, 40.)

[72] "Notes on Virginia"; _Works_: Ford, iv, 82-83. See La
Rochefoucauld, iii, p. 161, on Jefferson's slaves.

[73] Jefferson to Chastellux, Sept. 2, 1785; _Thomas Jefferson
Correspondence_, Bixby Collection: Ford, 12; and see Jefferson's
comparison of the sections of the country, _ib._ and _infra_, chap. VI.

[74] "Many of the wealthier class were to be seen seeking relief from
the vacuity of idleness, not merely in the allowable pleasures of the
chase and the turf, but in the debasing ones of cock-fighting, gaming,
and drinking." (Tucker, i, 18; and see La Rochefoucauld, iii, 77; Weld,
i, 191; also _infra_, chap. VII, and references there given.)

[75] Jones, 48, 49, and 52; Chastellux, 222-24; also, translator's note
to _ib._, 292-93. The following order from the Records of the Court of
Rappahannock County, Jan. 2, 1688 (_sic_), p. 141, is illustrative:--

"It having pleased Almighty God to bless his Royall Mahst. with the
birth of a son & his subjects with a Prince of Wales, and for as much as
his Excellency hath sett apart the 16th. day of this Inst. Janr'y. for
solemnizing the same. To the end therefore that it may be don with all
the expressions of joy this County is capable of, this Court have
ordered that Capt. Geo. Taylor do provide & bring to the North Side
Courthouse for this county as much Rum or other strong Liquor with sugar
proportionable as shall amount to six thousand five hundred pounds of
Tobb. to be distributed amongst the Troops of horse, Compa. of foot and
other persons that shall be present at the Sd. Solemnitie. And that the
said sum be allowed him at the next laying of the Levey. As also that
Capt. Samll. Blomfield provide & bring to the South side Courthouse for
this county as much Rum or other strong Liquor Wth. sugar proportionable
as shall amount to three thousand five hundred pounds of Tobb. to be
distributed as above att the South side Courthouse, and the Sd. sum to
be allowed him at the next laying of the Levey."

And see Bruce: _Econ._, ii, 210-31; also Wise, 320, 327-29. Although
Bruce and Wise deal with a much earlier period, drinking seems to have
increased in the interval. (See Fithian, 105-14, 123.)

[76] As in Massachusetts, for instance. "In most country towns ... you
will find almost every other house with a sign of entertainment before
it.... If you sit the evening, you will find the house full of people,
drinking drams, flip, toddy, carousing, swearing." (John Adams's
_Diary_, describing a New England county, in 1761; _Works_: Adams, ii,
125-26. The Records of Essex County, Massachusetts, now in process of
publication by the Essex Institute, contain many cases that confirm the
observation of Adams.)

[77] Meade, i, 52-54; and see Schoepf, ii, 62-63.

[78] Wise, 317-19; Bruce: _Inst._, i, 308-15.

[79] Bruce: _Inst._, i, 317-22; and see especially, _Va. Mag. Hist. and
Biog._, ii, 196 _et seq._

[80] _Ib._, 323-30; also Fithian, 50 _et seq._

[81] Bruce: _Inst._, i, 331-42.

[82] _Ib._, 452-53.

[83] _Ib._, 456-57. Bruce shows that two thirds of the women who joined
in deeds could not write. This, however, was in the richer section of
the colony at a much earlier period. Just before the Revolution Virginia
girls, even in wealthy families, "were simply taught to read and write
at 25/ [shillings] and a load of wood per year--A boarding school was
no where in Virginia to be found." (Mrs. Carrington to her sister Nancy;
MS.) Part of this letter appears in the _Atlantic Monthly_ series cited
hereafter (see chap. V); but the teacher's pay is incorrectly printed as
"pounds" instead of "shillings." (_Atlantic Monthly_, lxxxiv, 544-45.)

[84] Bruce: _Inst._, i, 402-42; and see Wise, 313-15. Professor Tucker
says that "literature was neglected, or cultivated, by the small number
who had been educated in England, rather as an accomplishment and a mark
of distinction than for the substantial benefits it confers." (Tucker,
i, 18.)

[85] Fithian, 177.

[86] See catalogue in _W. and M. C. Q._, x and xi.

[87] See catalogue in Appendix A to Byrd's _Writings_: Bassett.

[88] See catalogue of John Adams's Library, in the Boston Public
Library.

[89] Ambler, 9; and see Wise, 68-70.

[90] Trustworthy data on this subject is given in the volumes of the
_Va. Mag. Hist. and Biog._; see also _W. and M. C. Q._

[91] Wertenbaker: _P. and P._, 14-20. But see William G. Stanard's
exhaustive review of Mr. Wertenbaker's book in _Va. Mag. Hist. and
Biog._, xviii, 339-48.

[92] "One hundred young maids for wives, as the former ninety sent. One
hundred boys more for apprentices likewise to the public tenants. One
hundred servants to be disposed among the old planters which they
exclusively desire and will pay the company their charges." (_Virginia
Company Records_, i, 66; and see Fithian, 111.)

[93] For the understanding in England at that period of the origin of
this class of Virginia colonists see Defoe: _Moll Flanders_, 65 _et
seq._ On transported convicts see _Amer. Hist. Rev._, ii. 12 _et seq._
For summary of the matter see Channing, i, 210-14, 226-27.

[94] Fithian to Greene, Dec. 1, 1773; Fithian, 280.

[95] Fithian to Peck, Aug. 12, 1774; Fithian, 286-88; and see Professor
Tucker's searching analysis in Tucker, i, 17-22; also see Lee, in Ford:
_P. on C._, 296-97. As to a genuinely aristocratic _group_, the New York
patroons were, perhaps, the most distinct in the country.

[96] Wertenbaker: _P. and P._, 14-20; also _Va. Mag. Hist. and Biog._,
xviii, 339-48.

[97] For accounts of brutal physical combats, see Anburey, ii, 310 _et
seq._ And for dueling, though at an earlier period, see Wise, 329-31.
The practice of dueling rapidly declined; but fighting of a violent and
often repulsive character persisted, as we shall see, far into the
nineteenth century. Also, see La Rochefoucauld, Chastellux, and other
travelers, _infra_, chap. VII.

[98] Schoepf, i, 261; and see references, _infra_, chap. VII.

[99] After Braddock's defeat the Indians "extended their raids ...
pillaging and murdering in the most ruthless manner.... The whole
country from New York to the heart of Virginia became the theatre of
inhuman barbarities and heartless destruction." (Lowdermilk, 186.)

[100] Although the rifle did not come into general use until the
Revolution, the firearms of this period have been so universally
referred to as "rifles" that I have, for convenience, adopted this
inaccurate term in the first two chapters.

[101] "Their actions are regulated by the wildness of the neighbourhood.
The deer often come to eat their grain, the wolves to destroy their
sheep, the bears to kill their hogs, the foxes to catch their poultry.
This surrounding hostility immediately puts the gun into their
hands,... and thus by defending their property, they soon become
professed hunters; ... once hunters, farewell to the plough. The chase
renders them ferocious, gloomy, and unsociable; a hunter wants no
neighbour, he rather hates them.... The manners of the Indian natives
are respectable, compared with this European medley. Their wives and
children live in sloth and inactivity.... You cannot imagine what an
effect on manners the great distance they live from each other has....
Eating of wild meat ... tends to alter their temper.... I have seen it."
(Crèvecoeur, 66-68.) Crèvecoeur was himself a frontier farmer.
(_Writings_: Sparks, ix, footnote to 259.)

[102] "Many families carry with them all their decency of conduct,
purity of morals, and respect of religion; but these are scarce."
(Crèvecoeur, 70.) Crèvecoeur says his family was one of these.

[103] This bellicose trait persisted for many years and is noted by all
contemporary observers.




CHAPTER II

A FRONTIER EDUCATION

    "Come to me," quoth the pine tree,
    "I am the giver of honor." (Emerson.)

    I do not think the greatest things have been done for the world by
    its bookmen. Education is not the chips of arithmetic and grammar.
    (Wendell Phillips.)


John Marshall was never out of the simple, crude environment of the near
frontier for longer than one brief space of a few months until his
twentieth year, when, as lieutenant of the famous Culpeper Minute Men,
he marched away to battle. The life he had led during this period
strengthened that powerful physical equipment which no strain of his
later years seemed to impair; and helped to establish that extraordinary
nervous equilibrium which no excitement or contest ever was able to
unbalance.[104] This foundation part of his life was even more
influential on the forming mind and spiritual outlook of the growing
youth.

Thomas Marshall left the little farm of poor land in Westmoreland County
not long after the death of his father, John Marshall "of the forest."
This ancestral "estate" had no attractions for the enterprising young
man. Indeed, there is reason for thinking that he abandoned it.[105] He
lifted his first rooftree in what then were still the wilds of Prince
William County.[106] There we find him with his young wife, and there in
the red year of British disaster his eldest son was born. The cabin has
long since disappeared, and only a rude monument of native stone,
erected by college students in recent years, now marks the supposed site
of this historic birthplace.

The spot is a placid, slumberous countryside. A small stream runs hard
by. In the near distance still stands one of the original cabins of
Spotswood's Germans.[107] But the soil is not generous. When Thomas
Marshall settled there the little watercourse at the foot of the gentle
slope on which his cabin stood doubtless ran bank-full; for in 1754 the
forests remained thick and unviolated about his cabin,[108] and fed the
waters from the heavy rains in restrained and steady flow to creek and
river channels. Amidst these surroundings four children of Thomas
Marshall and Mary Keith were born.[109]

The sturdy young pioneer was not content to remain permanently at
Germantown. A few years later found him building another home about
thirty miles farther westward, in a valley in the Blue Ridge
Mountains.[110] Here the elder son spent the critical space of life from
childhood to his eighteenth year. This little building still stands,
occupied by negroes employed on the estate of which it forms a part. The
view from it even now is attractive; and in the days of John Marshall's
youth must have been very beautiful.

The house is placed on a slight rise of ground on the eastern edge of
the valley. Near by, to the south and closer still to the west, two
rapid mountain streams sing their quieting, restful song. On all sides
the Blue Ridge lifts the modest heights of its purple hills. This valley
at that time was called "The Hollow," and justly so; for it is but a cup
in the lazy and unambitious mountains. When the eldest son first saw
this frontier home, great trees thickly covered mountain, hill, and
glade, and surrounded the meadow, which the Marshall dwelling
overlooked, with a wall of inviting green.[111]

Two days by the very lowest reckoning it must have taken Thomas Marshall
to remove his family to this new abode. It is more likely that three or
four days were consumed in the toilsome task. The very careful maps of
the British survey at that time show only three roads in all immense
Prince William County.[112] On one of these the Marshalls might have
made their way northward, and on another, which it probably joined, they
could have traveled westward. But these trails were primitive and
extremely difficult for any kind of vehicle.[113]

Some time before 1765, then, rational imagination can picture a strong,
rude wagon drawn by two horses crawling along the stumpy,
rock-roughened, and mud-mired road through the dense woods that led in
the direction of "The Hollow." In the wagon sat a young woman.[114] By
her side a sturdy, red-cheeked boy looked out with alert but quiet
interest showing from his brilliant black eyes; and three other children
cried their delight or vexation as the hours wore on. In this wagon,
too, were piled the little family's household goods; nor did this make a
heavy load, for all the Lares and Penates of a frontier settler's family
in 1760 would not fill a single room of a moderately furnished household
in the present day.

[Illustration: _"The Hollow," Markham, Virginia_

_John Marshall's boyhood home._]

By the side of the wagon strode a young man dressed in the costume of
the frontier. Tall, broad-shouldered, lithe-hipped, erect, he was a very
oak of a man. His splendid head was carried with a peculiar dignity; and
the grave but kindly command that shone from his face, together with the
brooding thoughtfulness and fearless light of his striking eyes, would
have singled him out in any assemblage as a man to be respected and
trusted. A negro drove the team, and a negro girl walked behind.[115]

So went the Marshalls to their Blue Ridge home. It was a commodious one
for those days. Two rooms downstairs, one fifteen feet by sixteen, the
other twelve by fourteen, and above two half-story lofts of the same
dimensions, constituted this domestic castle. At one end of the larger
downstairs room is a broad and deep stone fireplace, and from this rises
a big chimney of the same material, supporting the house on the
outside.[116]

Thomas and Mary Marshall's pride and aspiration, as well as their social
importance among the settlers, are strongly shown by this frontier
dwelling. Unlike those of most of the other backwoodsmen, it was not a
log cabin, but a frame house built of whip-sawed uprights and
boards.[117] It was perhaps easier to construct a one and a half story
house with such materials; for to lift heavy timbers to such a height
required great effort.[118] But Thomas Marshall's social, religious, and
political status[119] in the newly organized County of Fauquier were the
leading influences that induced him to build a house which, for the
time and place, was so pretentious. A small stone "meat house," a
one-room log cabin for his two negroes, and a log stable, completed the
establishment.

In such an abode, and amidst such surroundings, the fast-growing
family[120] of Thomas Marshall lived for more than twelve years. At
first neighbors were few and distant. The nearest settlements were at
Warrenton, some twenty-three miles to the eastward, and Winchester, a
little farther over the mountains to the west.[121] But, with the horror
of Braddock's defeat subdued by the widespread and decisive counter
victories, settlers began to come into the country on both sides of the
Blue Ridge. These were comparatively small farmers, who, later on,
became raisers of wheat, corn, and other cereals, rather than tobacco.

Not until John Marshall had passed his early boyhood, however, did these
settlers become sufficiently numerous to form even a scattered
community, and his early years were enlivened with no child
companionship except that of his younger brothers and sisters. For the
most part his days were spent, rifle in hand, in the surrounding
mountains, and by the pleasant waters that flowed through the valley of
his forest home. He helped his mother, of course, with her many labors,
did the innumerable chores which the day's work required, and looked
after the younger children, as the eldest child always must do. To his
brothers and sisters as well as to his parents, he was devoted with a
tenderness peculiar to his uncommonly affectionate nature and they, in
turn, "fairly idolized" him.[122]

There were few of those minor conveniences which we to-day consider the
most indispensable of the simplest necessities. John Marshall's mother,
like most other women of that region and period, seldom had such things
as pins; in place of them use was made of thorns plucked from the bushes
in the woods.[123] The fare, naturally, was simple and primitive. Game
from the forest and fish from the stream were the principal articles of
diet. Bear meat was plentiful.[124] Even at that early period, salt pork
and salt fish probably formed a part of the family's food, though not
to the extent to which such cured provisions were used by those of the
back country in later years, when these articles became the staple of
the border.[125]

Corn meal was the basis of the family's bread supply. Even this was not
always at hand, and corn meal mush was welcomed with a shout by the
clamorous brood with which the little cabin soon fairly swarmed. It
could not have been possible for the Marshall family in their house on
Goose Creek to have the luxury of bread made from wheat flour. The
clothing of the family was mostly homespun. "Store goods," whether food,
fabric, or utensil, could be got to Thomas Marshall's backwoods dwelling
only with great difficulty and at prohibitive expense.[126]

But young John Marshall did not know that he was missing anything. On
the contrary, he was conscious of a certain wealth not found in cities
or among the currents of motion. For ever his eye looked out upon noble
yet quieting, poetic yet placid, surroundings. Always he could have the
inspiring views from the neighboring heights, the majestic stillness of
the woods, the soothing music of meadow and stream. So uplifted was the
boy by the glory of the mountains at daybreak that he always rose while
the eastern sky was yet gray.[127] He was thrilled by the splendor of
sunset and never tired of watching it until night fell upon the vast and
somber forests. For the boy was charged with poetic enthusiasm, it
appears, and the reading of poetry became his chief delight in youth and
continued to be his solace and comfort throughout his long life;[128]
indeed, Marshall liked to make verses himself, and never outgrew the
habit.

There was in him a rich vein of romance; and, later on, this manifested
itself by his passion for the great creations of fiction. Throughout his
days he would turn to the works of favorite novelists for relaxation and
renewal.[129]

The mental and spiritual effects of his surroundings on the forming mind
and unfolding soul of this young American must have been as lasting and
profound as were the physical effects on his body.[130] His environment
and his normal, wholesome daily activities could not have failed to do
its work in building the character of the growing boy. These and his
sound, steady, and uncommonly strong parentage must, perforce, have
helped to give him that courage for action, that balanced vision for
judgment, and that serene outlook on life and its problems, which were
so notable and distinguished in his mature and rugged manhood.

Lucky for John Marshall and this country that he was not city born and
bred; lucky that not even the small social activities of a country town
drained away a single ohm of his nervous energy or obscured with lesser
pictures the large panorama which accustomed his developing intelligence
to look upon big and simple things in a big and simple way.

There were then no public schools in that frontier[131] region, and
young Marshall went untaught save for the instruction his parents gave
him. For this task his father was unusually well equipped, though not by
any formal schooling. All accounts agree that Thomas Marshall, while not
a man of any learning, had contrived to acquire a useful though limited
education, which went much further with a man of his well-ordered mind
and determined will than a university training could go with a man of
looser fiber and cast in smaller mould. The father was careful,
painstaking, and persistent in imparting to his children and
particularly to John all the education he himself could acquire.

Between Thomas Marshall and his eldest son a mutual sympathy, respect,
and admiration existed, as uncommon as it was wholesome and beneficial.
"My father," often said John Marshall, "was a far abler man than any of
his sons."[132] In "his private and familiar conversations with me,"
says Justice Story, "when there was no other listener ... he never named
his father ... without dwelling on his character with a fond and winning
enthusiasm ... he broke out with a spontaneous eloquence ... upon his
virtues and talents."[133] Justice Story wrote a sketch of Marshall for
the "National Portrait Gallery," in which Thomas Marshall is highly
praised. In acknowledging the receipt of the magazine, Marshall wrote:
"I am particularly gratified by the terms in which you speak of my
father. If any contemporary, who knew him in the prime of manhood,
survived, he would confirm all you say."[134]

So whether at home with his mother or on surveying trips with his
father, the boy continually was under the influence and direction of
hardy, clear-minded, unusual parents. Their lofty and simple ideals,
their rational thinking, their unbending uprightness, their religious
convictions--these were the intellectual companions of John Marshall's
childhood and youth. While too much credit has not been given Thomas
Marshall for the training of the eldest son, far too little has been
bestowed on Mary Randolph Keith, who was, in all things, the equal of
her husband.

Although, as we have seen, many books were brought into eastern Virginia
by the rich planters, it was difficult for the dwellers on the frontier
to secure any reading material. Most books had to be imported, were
very expensive, and, in the back country, there were no local sources of
supply where they could be purchased. Also, the frontier settlers had
neither the leisure nor, it appears, the desire for reading[135] that
distinguished the wealthy landlords of the older parts of the
colony.[136] Thomas Marshall, however, was an exception to his class in
his eagerness for the knowledge to be gathered from books and in his
determination that his children should have those advantages which
reading gives.

So, while his small house in "The Hollow" of the Blue Ridge probably
contained not many more books than children, yet such volumes as were on
that frontier bookshelf were absorbed and made the intellectual
possession of the reader. The Bible was there, of course; and probably
Shakespeare also.[137] The only book which positively is known to have
been a literary companion of John Marshall was a volume of Pope's poems.
He told Justice Story that, by the time he was twelve years old (1767),
he had copied every word of the "Essay on Man" and other of Pope's moral
essays, and had committed to memory "many of the most interesting
passages."[138] This would seem to prove that not many other attractive
books were at the boyhood hands of so eager a reader of poetry and
fiction as Marshall always was. It was quite natural that this volume
should be in that primitive household; for, at that time, Pope was more
widely read, admired, and quoted than any other writer either of poetry
or prose.[139]

For those who believe that early impressions are important, and who wish
to trace John Marshall's mental development back to its sources, it is
well to spend a moment on that curious work which Pope named his "Essay
on Man." The natural bent of the youth's mind was distinctively logical
and orderly, and Pope's metred syllogisms could not but have appealed to
it powerfully. The soul of Pope's "Essay" is the wisdom of and necessity
for order; and it is plain that the boy absorbed this vital message and
made it his own. Certain it is that even as a beardless young soldier,
offering his life for his country's independence, he already had grasped
the master truth that order is a necessary condition of liberty and
justice.

It seems probable, however, that other books were brought to this
mountain fireside. There was a limited store within his reach from which
Thomas Marshall could draw. With his employer and friend, George
Washington,[140] he was often a visitor at the wilderness home of Lord
Fairfax just over the Blue Ridge. Washington availed himself of the
Fairfax Library,[141] and it seems reasonable that Thomas Marshall did
the same. It is likely that he carried to his Blue Ridge dwelling an
occasional Fairfax volume carefully selected for its usefulness in
developing his own as well as his children's minds.

This contact with the self-expatriated nobleman had more important
results, however, than access to his books. Thomas Marshall's life was
profoundly influenced by his early and intimate companionship with the
well-mannered though impetuous and headstrong young Washington, who
engaged him as assistant surveyor of the Fairfax estate.[142] From youth
to manhood, both had close association with Lord Fairfax, who gave
Washington his first employment and secured for him the appointment by
the colonial authorities as public surveyor.[143] Washington was related
by marriage to the proprietor of the Northern Neck, his brother Lawrence
having married the daughter of William Fairfax. When their father died,
Lawrence Washington took the place of parent to his younger
brother;[144] and in his house the great landowner met George
Washington, of whom he became very fond. For more than three years the
youthful surveyor passed most of his time in the Blue Ridge part of the
British nobleman's vast holdings,[145] and in frequent and intimate
contact with his employer. Thus Thomas Marshall, as Washington's
associate and helper, came under the guidance and example of Lord
Fairfax.

The romantic story of this strange man deserves to be told at length,
but only a résumé is possible here. This summary, however, must be given
for its bearing on the characters of George Washington and Thomas
Marshall, and, through them, its formative influence on John
Marshall.[146]

Lord Fairfax inherited his enormous Virginia estate from his mother, the
daughter of Lord Culpeper, the final grantee of that kingly domain. This
profligate grant of a careless and dissolute monarch embraced some five
million acres between the Potomac and Rappahannock Rivers back to a
straight line connecting the sources of these streams. While the young
heir of the ancient Fairfax title was in Oxford, his father having died,
his mother and grandmother, the dowager Ladies Fairfax and Culpeper,
forced him to cut off the entail of the extensive Fairfax estates in
England in order to save the heavily mortgaged Culpeper estates in the
same country; and as compensation for this sacrifice, the noble Oxford
student was promised the inheritance of this wild Virginia forest
principality.

Nor did the youthful baron's misfortunes end there. The lady of his
heart had promised to become his bride, the wedding day was set, the
preparations made. But before that hour of joy arrived, this fickle
daughter of ambition received an offer to become a duchess instead of a
mere baroness, and, throwing over young Fairfax without delay, she
embraced the more exalted station offered her.

These repeated blows of adversity embittered the youthful head of the
illustrious house of Fairfax against mother and grandmother, and, for
the time being, all but against England itself. So, after some years of
management of his Virginia estate by his cousin, William, who was in
Government employ in America, Lord Fairfax himself left England forever,
came to Virginia, took personal charge of his inherited holdings, and
finally established himself at its very outskirts on the savage
frontier. In the Shenandoah Valley, near Winchester, he built a small
house of native stone and called it Greenway Court,[147] after the
English fashion; but it never was anything more than a hunting
lodge.[148]

From this establishment he personally managed his vast estates, parting
with his lands to settlers on easy terms. His tenants generally were
treated with liberality and consideration. If any land that was leased
or sold did not turn out as was expected by the purchaser or lessee,
another and better tract would be given in its place. If money was
needed for improvements, Lord Fairfax advanced it. His excess revenues
were given to the poor. So that the Northern Neck under Lord Fairfax's
administration became the best settled, best cultivated, and best
governed of all the upper regions of the colony.[149]

Through this exile of circumstance, Fate wove another curious thread in
the destiny of John Marshall. Lord Fairfax was the head of that ancient
house whose devotion to liberty had been proved on many a battlefield.
The second Lord Fairfax commanded the Parliamentary forces at Marston
Moor. The third Lord Fairfax was the general of Cromwell's army and the
hero of Naseby. So the proprietor of the Northern Neck, who was the
sixth Lord Fairfax, came of blood that had been poured out for human
rights. He had, as an inheritance of his house, that love of liberty for
which his ancestors had fought.[150]

But much as he hated oppression, Lord Fairfax was equally hostile to
disorder and upheaval; and his forbears had opposed these even to the
point of helping restore Charles II to the throne. Thus the Virginia
baron's talk and teaching were of liberty with order, independence with
respect for law.[151]

He loved literature and was himself no mean writer, his contributions
while he was in the University having been accepted by the
"Spectator."[152] His example instructed his companions in manners, too,
and schooled them in the speech and deportment of gentlemen. All who met
George Washington in his mature years were impressed by his correct if
restricted language, his courtly conduct, and his dignified if rigid
bearing. Much of this was due to his noble patron.[153]

Thomas Marshall was affected in the same way and by the same cause.
Pioneer and backwoodsman though he was, and, as we shall see, true to
his class and section, he yet acquired more balanced ideas of liberty,
better manners, and finer if not higher views of life than the crude,
rough individualists who inhabited the back country. As was the case
with Washington, this intellectual and moral tendency in Thomas
Marshall's development was due, in large measure, to the influence of
Lord Fairfax. While it cannot be said that George Washington imitated
the wilderness nobleman, yet Fairfax undoubtedly afforded his protégé a
certain standard of living, thinking, and acting; and Thomas Marshall
followed the example set by his fellow surveyor.[154] Thus came into the
Marshall household a different atmosphere from that which pervaded the
cabins of the Blue Ridge.

All this, however, did not make for his unpopularity among Thomas
Marshall's distant, scattered, and humbly placed neighbors. On the
contrary, it seems to have increased the consideration and respect which
his native qualities had won for him from the pioneers. Certainly Thomas
Marshall was the foremost man in Fauquier County when it was established
in 1759. He was almost immediately elected to represent the county in
the Virginia House of Burgesses;[155] and, six years later, he was
appointed Sheriff by Governor Fauquier, for whom the county was
named.[156] The shrievalty was, at that time, the most powerful local
office in Virginia; and the fees and perquisites of the place made it
the most lucrative.[157]

By 1765 Thomas Marshall felt himself sufficiently established to acquire
the land where he had lived since his removal from Germantown. In the
autumn of that year he leased from Thomas Ludwell Lee and Colonel
Richard Henry Lee the three hundred and thirty acres on Goose Creek
"whereon the said Thomas Marshall now lives." The lease was "for and
during the natural lives of ... Thomas Marshall, Mary Marshall his wife,
and John Marshall his son and ... the longest liver of them." The
consideration was "five shillings current money in hand paid" and a
"yearly rent of five pounds current money, and the quit rents and Land
Tax."[158]

In 1769 Leeds Parish, embracing Fauquier County, was established.[159]
Of this parish Thomas Marshall became the principal vestryman.[160] This
office supplemented, in dignity and consequence, that of sheriff; the
one was religious and denoted high social status, the other was civil
and evidenced political importance.[161] The occupancy of both marked
Thomas Marshall as the chief figure in the local government and in the
social and political life of Fauquier County, although the holding of
the superior office of burgess left no doubt as to his leadership. The
vestries had immense influence in the civil affairs of the parish and
the absolute management of the practical business of the established
(Episcopal) church.[162] Among the duties and privileges of the vestry
was that of selecting and employing the clergyman.[163]

The vestry of Leeds Parish, with Thomas Marshall at its head, chose for
its minister a young Scotchman, James Thompson, who had arrived in
Virginia a year or two earlier. He lived at first with the Marshall
family.[164] Thus it came about that John Marshall received the first of
his three short periods of formal schooling; for during his trial year
the young[165] Scotch deacon returned Thomas Marshall's hospitality by
giving the elder children such instruction as occasion offered,[166] as
was the custom of parsons, who always were teachers as well as
preachers. We can imagine the embryo clergyman instructing the eldest
son under the shade of the friendly trees in pleasant weather or before
the blazing logs in the great fireplace when winter came. While living
with the Marshall family, he doubtless slept with the children in the
half-loft[167] of that frontier dwelling.

There was nothing unusual about this; indeed, circumstances made it the
common and unavoidable custom. Washington tells us that in his surveying
trips, he frequently slept on the floor in the room of a settler's cabin
where the fireplace was and where husband, wife, children, and visitors
stretched themselves for nightly rest; and he remarks that the person
was lucky who got the spot nearest the fireplace.[168]

At the end of a year the embryo Scottish clergyman's character, ability,
and services having met the approval of Thomas Marshall and his fellow
vestrymen, Thompson returned to England for orders.[169] So ended John
Marshall's first instruction from a trained teacher. His pious tutor
returned the next year, at once married a young woman of the Virginia
frontier, and settled on the glebe near Salem, where he varied his
ministerial duties by teaching such children of his parishioners as
could get to him. It may be that John Marshall was among them.[170]

In the light they throw upon the Marshall family, the political opinions
of Mr. Thompson are as important as was his teaching. True to the
impulses of youth, he was a man of the people, ardently championed their
cause, and was fervently against British misrule, as was his principal
vestryman. Five years later we find him preaching a sermon on the
subject so strong that a part of it has been preserved.[171]

Thus the years of John Marshall's life sped on until his eighteenth
birthday. By this time Thomas Marshall's rapidly growing prosperity
enabled him to buy a larger farm in a more favorable locality. In
January, 1773, he purchased from Thomas Turner seventeen hundred acres
adjacent to North Cobler Mountain, a short distance to the east of his
first location in "The Hollow."[172] For this plantation he paid "nine
hundred and twelve pounds ten shillings current money of Virginia." Here
he established himself for the third time and remained for ten years.

On an elevation overlooking valley, stream, and grove, with the Blue
Ridge as a near background, he built a frame house thirty-three by
thirty feet, the attic or loft under the roof serving as a second
story.[173] The house had seven rooms, four below and three above. One
of the upper rooms is, comparatively, very large, being twenty-one by
fifteen feet; and, according to tradition, this was used as a
school-room for the Marshall children. Indeed, the structure was, for
that section and period, a pretentious dwelling. This is the famous Oak
Hill.[174] The house still stands as a modest wing to the large and
attractive building erected by John Marshall's eldest son, Thomas, many
years later.

[Illustration: OAK HILL

From a water-color. The original house, built by Thomas Marshall in
1773, is shown at the right, in the rear of the main building.]

A book was placed in the hands of John Marshall, at this time, that
influenced his mind even more than his reading of Pope's poetry when a
small boy. Blackstone's "Commentaries" was published in America in 1772
and one of the original subscribers was "Captain Thomas Marshall, Clerk
of Dunmore County, Virginia."[175] The youthful backwoodsman read
Blackstone with delight; for this legal classic is the poetry of law,
just as Pope is logic in poetry. Also, Thomas Marshall saw to it that
his son read Blackstone as carefully as circumstances permitted. He had
bought the book for John's use as much as or more than for his own
information. Marshall's parents, with a sharp eye on the calling that
then brought greatest honor and profit, had determined that their eldest
son should be a lawyer. "From my infancy," says Marshall, "I was
destined for the bar."[176] He did not, we believe, give his attention
exclusively to Blackstone. Indeed, it appears certain that his legal
reading at this period was fragmentary and interrupted, for his time was
taken up and his mind largely absorbed by military exercises and study.
He was intent on mastering the art of war against the day when the call
of patriotism should come to him to be a soldier.[177] So the law book
was pushed aside by the manual of arms.

About this time John Marshall was given his second fragment of formal
teaching. He was sent to the school of the Reverend Archibald Campbell
in Westmoreland County.[178] This embryo "academy" was a primitive
affair, but its solitary instructor was a sound classical scholar
equipped with all the learning which the Scottish universities could
give. He was a man of unusual ability, which, it appears, was the common
possession of his family. He was the uncle of the British poet
Campbell.[179]

The sons of this colonial parson school-teacher from Scotland became men
of note and influence, one of them among the most distinguished lawyers
of Virginia.[180] Indeed, it was chiefly in order to teach his two boys
that Mr. Campbell opened his little school in Westmoreland.[181] So,
while John Marshall attended the "academy" for only a few months, that
brief period under such a teacher was worth much in methods of thought
and study.

The third scanty fragment of John Marshall's education by professional
instructors comes seven years later, at a time and under circumstances
which make it necessary to defer a description of it.

During all these years, however, young Marshall was getting another kind
of education more real and more influential on his later life than any
regular schooling could have given him. Thomas Marshall served in the
House of Burgesses at Williamsburg[182] from 1761 until October, 1767,
when he became Sheriff of Fauquier County.[183] In 1769 he was again
chosen Burgess,[184] and reëlected until 1773, when he was appointed
Clerk of Dunmore County.[185] In 1775 he once more appears as Burgess
for Fauquier County.[186] Throughout this period, George Washington also
served as Burgess from Westmoreland County. Thomas Marshall was a member
of the standing committees on Trade, Religion, Propositions and
Grievances, and on several special committees and commissions.[187]

The situations, needs, and interests of the upland counties above the
line of the falls of the rivers, so different from those on the
tidewater, had made the political oligarchy of the lower counties more
distinct and conspicuous than ever. This dominant political force was
aristocratic and selfish. It was generally hostile to the opinions of
the smaller pioneer landowners of the back country and it did not
provide adequately for their necessities. Their petitions for roads,
bridges, and other indispensable requisites of social and industrial
life usually were denied; and their rapidly growing democratic spirit
was scorned with haughty disfavor and contempt.[188]

In the House of Burgesses, one could tell by his apparel and deportment,
no less than by his sentiments, a member from the mountains, and indeed
from anywhere above the fall line of the rivers; and, by the same
tokens, one from the great plantations below. The latter came
fashionably attired, according to the latest English mode, with the silk
knee breeches and stockings, colored coat, ornamented waistcoat, linen
and lace, buckled shoes, garters, and all details of polite adornment
that the London fashion of the time dictated. The upland men were
plainly clad; and those from the border appeared in their native
homespun, with buckskin shirts, coonskin caps, and the queue of their
unpowdered hair tied in a bag or sack of some thin material. To this
upland class of Burgesses, Thomas Marshall belonged.

He had been a member of the House for four years when the difference
between the two Virginia sections and classes suddenly crystallized. The
upper counties found a leader and fought and overcame the hitherto
invincible power of the tidewater aristocracy, which, until then, had
held the Government of Virginia in its lordly hand.

This explosion came in 1765, when John Marshall was ten years old. For
nearly a quarter of a century the combination of the great planter
interests of eastern Virginia had kept John Robinson Speaker of the
House and Treasurer of the Colony.[189] He was an ideal representative
of his class--rich, generous, kindly, and ever ready to oblige his
fellow members of the ruling faction.[190] To these he had lent large
sums of money from the public treasury and, at last, finding himself
lost unless he could find a way out of the financial quagmire in which
he was sinking, Robinson, with his fellow aristocrats, devised a scheme
for establishing a loan office, equipping it with a million and a
quarter of dollars borrowed on the faith of the colony, to be lent to
individuals on personal security.[191] A bill to this effect was
presented and the tidewater machine was oiled and set in motion to put
it through.

As yet, Robinson's predicament was known only to himself and those upon
whom he had bestowed the proceeds of the people's taxes; and no
opposition was expected to the proposed resolution which would extricate
the embarrassed Treasurer. But Patrick Henry, a young member from
Hanover County, who had just been elected to the House of Burgesses and
who had displayed in the famous Parsons case a courage and eloquence
which had given him a reputation throughout the colony,[192] opposed, on
principle, the proposed loan-office law. In a speech of startling power
he attacked the bill and carried with him every member from the up
counties. The bill was lost.[193] It was the first defeat ever
experienced by the combination that had governed Virginia so long that
they felt that it was their inalienable right to do so. One of the votes
that struck this blow was cast by Thomas Marshall.[194] Robinson died
the next year; his defalcation was discovered and the real purpose of
the bill was thus revealed.[195]

Quick on the heels of this victory for popular rights and honest
government trod another event of vital influence on American history.
The British Parliament, the year before, had passed resolutions
declaring the right of Parliament to tax the colonies without
representation, and, indeed, to enact any law it pleased for the
government and administration of British dominions wherever
situated.[196] The colonies protested, Virginia among them; but when
finally Parliament enacted the Stamp Act, although the colonies were in
sullen anger, they yet prepared to submit.[197] The more eminent men
among the Virginia Burgesses were willing to remonstrate once more, but
had not the heart to go further.[198] It was no part of the plan or
feeling of the aristocracy to affront the Royal Government openly. At
this moment, Patrick Henry suddenly offered his historic resolutions,
the last one a bold denial of Parliament's right to pass the Stamp Act,
and a savage defiance of the British Government.[199]

Cautious members of the tidewater organization were aghast. They did not
like the Stamp Act themselves, but they thought that this was going too
far. The logical end of it would be armed conflict, they said; or at the
very least, a temporary suspension of profitable commerce with England.
Their material interests were involved; and while they hazarded these
and life itself most nobly when the test of war finally came, ten years
later, they were not minded to risk either business or comfort until
forced to do so.[200]

But a far stronger influence with them was their hatred of Henry and
their fear of the growing power of the up country. They were smarting
from the defeat[201] of the loan-office bill. They did not relish the
idea of following the audacious Henry and his democratic supporters
from the hills. They resented the leadership which the "new men" were
assuming. To the aristocratic machine it was offensive to have any
movement originate outside itself.[202]

The up-country members to a man rallied about Patrick Henry and fought
beneath the standard of principle which he had raised. The line that
marked the division between these contending forces in the Virginia
House of Burgesses was practically identical with that which separated
them in the loan-office struggle which had just taken place. The same
men who had supported Robinson were now against any measure which might
too radically assert the rights of the colonies and offend both the
throne and Westminster Hall. And as in the Robinson case so in the fight
over Henry's Stamp Act Resolutions, the Burgesses who represented the
frontier settlers and small landowners and who stood for their
democratic views, formed a compact and militant force to strike for
popular government as they already had struck, and successfully, for
honest administration.[203]

Henry's fifth resolution was the first written American assertion of
independence, the virile seed out of which the declaration at
Philadelphia ten years later directly grew. It was over this resolution
that Thomas Jefferson said, "the debate was most bloody";[204] and it
was in this particular part of the debate that Patrick Henry made his
immortal speech, ending with the famous words, "Tarquin and Cæsar had
each his Brutus, Charles the First his Cromwell, and George the Third--"
And as the cries of "Treason! Treason! Treason!" rang from every part of
the hall, Henry, stretching himself to the utmost of his stature,
thundered, "--_may profit by their example_. If _this_ be treason, make
the most of it."[205]

Henry and the stout-hearted men of the hills won the day, but only by a
single vote. Peyton Randolph, the foremost member of the tidewater
aristocracy and Royal Attorney-General, exclaimed, "By God, I would have
given one[206] hundred guineas for a single vote!"[207] Thomas Marshall
again fought by Henry's side and voted for his patriotic defiance of
British injustice.[208]

[Illustration: _Oak Hill_]

This victory of the poorer section of the Old Dominion was, in Virginia,
the real beginning of the active period of the Revolution. It was
more--it was the ending of the hitherto unquestioned supremacy of
the tidewater aristocracy.[209] It marked the effective entrance of the
common man into Virginia's politics and government.

When Thomas Marshall returned to his Blue Ridge home, he described, of
course, the scenes he had witnessed and taken part in. The heart of his
son thrilled, we may be sure, as he listened to his father reciting
Patrick Henry's words of fire and portraying the manner, appearance, and
conduct of that master orator of liberty. So it was that John Marshall,
even when a boy, came into direct and living touch with the outside
world and learned at first hand of the dramatic movement and the mighty
forces that were about to quarry the materials for a nation.

Finally the epic year of 1775 arrived,--the year of the Boston riots,
Paul Revere's ride, Lexington and Concord,--above all, the year of the
Virginia Resolutions for Arming and Defense. Here we find Thomas
Marshall a member of the Virginia Convention,[210] when once more the
radicals of the up country met and defeated the aristocratic
conservatives of the older counties. The latter counseled prudence. They
argued weightily that the colony was not prepared for war with the Royal
Power across the sea. They urged patience and the working-out of the
problem by processes of conciliation and moderate devices, as those made
timid by their own interests always do.[211] Selfish love of ease made
them forget, for the moment, the lesson of Braddock's defeat. They held
up the overwhelming might of Great Britain and the impotence of the
King's subjects in his western dominions; and they were about to
prevail.

But again Patrick Henry became the voice of America. He offered the
Resolutions for Arming and Defense and carried them with that amazing
speech ending with, "Give me liberty or give me death,"[212] which
always will remain the classic of American liberty. Thomas Marshall, who
sat beneath its spell, declared that it was "one of the most bold,
animated, and vehement pieces of eloquence that had ever been
delivered."[213] Once more he promptly took his stand under Henry's
banner and supported the heroic resolutions with his vote and
influence.[214] So did George Washington, as both had done ten years
before in the battle over Henry's Stamp Act Resolutions in the House of
Burgesses in 1765.[215]

Not from newspapers, then, nor from second-hand rumor did John Marshall,
now nineteen years old, learn of the epochal acts of that convention.
He heard of them from his father's lips. Henry's inspired speech, which
still burns across a century with undiminished power, came to John
Marshall from one who had listened to it, as the family clustered around
the fireside of their Oak Hill home. The effect on John Marshall's mind
and spirit was heroic and profound, as his immediate action and his
conduct for several years demonstrate.

We may be sure that the father was not deceived as to the meaning of it
all; nor did he permit his family to be carried off the solid ground of
reality by any emotional excitement. Thomas Marshall was no fanatic, no
fancy-swayed enthusiast resolving highly in wrought-up moments and
retracting humbly in more sober hours. He was a man who looked before he
leaped; he counted the costs; he made up his mind with knowledge of the
facts. When Thomas Marshall decided to act, no unforeseen circumstance
could make him hesitate, no unexpected obstacle could swerve him from
his course; for he had considered carefully and well; and his son was of
like mettle.

So when Thomas Marshall came back to his Fauquier County home from the
fateful convention of 1775 at Richmond, he knew just what the whole
thing meant; and, so knowing, he gravely welcomed the outcome. He knew
that it meant war; and he knew also what war meant. Already he had been
a Virginia ranger and officer, had seen fighting, had witnessed wounds
and death.[216] The same decision that made him cast his vote for
Henry's resolutions also caused Thomas Marshall to draw his sword from
its scabbard. It inspired him to do more; for the father took down the
rifle from its deerhorn bracket and the hunting-knife from its hook, and
placed them in the hands of his first-born. And so we find father and
son ready for the field and prepared to make the ultimate argument of
willingness to lay down their lives for the cause they believed in.


FOOTNOTES:

[104] Story, in Dillon, iii, 334.

[105] The records of Westmoreland County do not show what disposition
Thomas Marshall made of the one hundred acres given him by his mother.
(Letter of Albert Stuart, Deputy Clerk of Westmoreland County, Virginia,
to the author, Aug. 26, 1913.) He probably abandoned it just as John
Washington and Thomas Pope abandoned one thousand acres of the same
land. (_Supra._)

[106] Westmoreland County is on the Potomac River near its entrance into
Chesapeake Bay. Prince William is about thirty miles farther up the
river. Marshall was born about one hundred miles by wagon road from
Appomattox Creek, northwest toward the Blue Ridge and in the wilderness.

[107] Campbell, 404-05.

[108] More than forty years later the country around the Blue Ridge was
still a dense forest. (La Rochefoucauld, iii, 173.) And the road even
from Richmond to Petersburg, an hundred miles east and south of the
Marshall cabin, as late as 1797 ran through "an almost uninterrupted
succession of woods." (_Ib._, 106; and see _infra_, chap. VII.)

[109] John, 1755; Elizabeth, 1756; Mary, 1757; Thomas, 1761.

[110] Binney, in Dillon, iii, 284.

[111] The ancient trunks of one or two of these trees still stand close
to the house.

[112] British map of 1755; Virginia State Library.

[113] See La Rochefoucauld, iii, 707. These "roads" were scarcely more
than mere tracks through the forests. See chap. VII, infra, for
description of roads at the period between the close of the Revolution
and the beginning of our National Government under the Constitution.
Even in the oldest and best settled colonies the roads were very bad.
Chalkley's _Augusta County (Va.) Records_ show many orders regarding
roads; but, considering the general state of highways, (see _infra_,
chap. VII) these probably concerned very primitive efforts. When Thomas
Marshall removed his family to the Blue Ridge, the journey must have
been strenuous even for that hardship-seasoned man.

[114] She was born in 1737. (Paxton, 19.)

[115] At this time, Thomas Marshall had at least two slaves, inherited
from his father. (Will of John Marshall "of the forest," Appendix I.) As
late as 1797 (nearly forty years after Thomas Marshall went to "The
Hollow"), La Rochefoucauld found that even on the "poorer" plantations
about the Blue Ridge the "planters, however wretched their condition,
have all of them one or two negroes." (La Rochefoucauld, iii, 135.)

[116] Personal inspection.

[117] Mill-sawed weather-boarding, held by cut nails, now covers the
sides of the house, the original broad whip-sawed boards, fastened by
wrought nails, having long since decayed.

[118] Practically all log cabins, at that time, had only one story.

[119] See _infra_.

[120] Six more children were born while the Marshalls remained in "The
Hollow": James M., 1764; Judith, 1766; William and Charles, 1767; Lucy,
1768; and Alexander, 1770.

[121] Nearly twenty years later, "Winchester was rude, wild, as nature
had made it," but "it was less so than its inhabitants." (Mrs.
Carrington to her sister Nancy, describing Winchester in 1777, from
personal observation; MS.)

[122] See Mrs. Carrington to her sister Nancy, _infra_, chap. V.

[123] John Marshall, when at the height of his career, liked to talk of
these times. "He ever recurred with fondness to that primitive mode of
life, when he partook with a keen relish of balm tea and mush; and when
the females used thorns for pins." (Howe, 263, and see _Hist. Mag._,
iii, 166.)

Most of the settlers on the frontier and near frontier did not use forks
or tablecloths. Washington found this condition in the house of a
Justice of the Peace. "When we came to supper there was neither a Cloth
upon ye Table nor a knife to eat with; but as good luck would have it,
we had knives of our [own]." (_Writings_: Ford, i, 4.)

Chastellux testifies that, thirty years later, the frontier settlers
were forced to make almost everything they used. Thus, as population
increased, necessity developed men of many trades and the little
communities became self-supporting. (Chastellux, 226-27.)

[124] More than a generation after Thomas Marshall moved to "The Hollow"
in the Blue Ridge large quantities of bear and beaver skins were brought
from the Valley into Staunton, not many miles away, just over the Ridge.
(La Rochefoucauld, iii, 179-80.) The product of the Blue Ridge itself
was sent to Fredericksburg and Alexandria. (See Crèvecoeur, 63-65.)
Thirty years earlier (1733) Colonel Byrd records that "Bears, Wolves,
and Panthers" roamed about the site of Richmond; that deer were
plentiful and rattlesnakes considered a delicacy. (Byrd's _Writings_:
Bassett, 293, 318-19.)

[125] See _infra_, chap. VII.

[126] Even forty years later, all "store" merchandise could be had in
this region only by hauling it from Richmond, Fredericksburg, or
Alexandria. Transportation from the latter place to Winchester cost two
dollars and a half per hundredweight. In 1797, "store" goods of all
kinds cost, in the Blue Ridge, thirty per cent more than in
Philadelphia. (La Rochefoucauld, iii, 203.) From Philadelphia the cost
was four to five dollars per hundredweight. While there appear to have
been country stores at Staunton and Winchester, over the mountains
(Chalkley's _Augusta County (Va.) Records_), the cost of freight to
those places was prohibitive of anything but the most absolute
necessities even ten years after the Constitution was adopted.

[127] _Hist. Mag._, iii, 166; Howe, 263; also, Story, in Dillon, iii,
334.

[128] Story, in Dillon, iii, 331-32.

[129] _Ib._

[130] See Binney, in Dillon, iii, 285.

[131] "Fauquier was then a frontier county ... far in advance of the
ordinary reach of compact population." (Story, in Dillon, iii, 331; also
see _New York Review_ (1838), iii, 333.) Even a generation later (1797),
La Rochefoucauld, writing from personal investigation, says (iii,
227-28): "There is no state so entirely destitute of all means of public
education as Virginia."

[132] See Binney, in Dillon, iii, 285.

[133] Story, in Dillon, iii, 330.

[134] Marshall to Story, July 31, 1833; Story, ii, 150.

[135] See _infra_, chaps. VII and VIII.

[136] "A taste for reading is more prevalent [in Virginia] among the
gentlemen of the first class than in any other part of America; but the
common people are, perhaps, more ignorant than elsewhere." (La
Rochefoucauld, iii, 232.) Other earlier and later travelers confirm this
statement of this careful French observer.

[137] Story thinks that Thomas Marshall, at this time, owned Milton,
Shakespeare, and Dryden. (Dillon, iii, 331.) This is possible. Twenty
years later, Chastellux found Milton, Addison, and Richardson in the
parlor of a New Jersey inn; but this was in the comparatively thickly
settled country adjacent to Philadelphia. (Chastellux, 159.)

[138] Story, in Dillon, iii, 331, and Binney, in _ib._, 283; _Hist.
Mag._, iii, 166.

[139] Lang: _History of English Literature_, 384; and see Gosse:
_History of Eighteenth Century Literature_, 131; also, Traill: _Social
England_, V, 72; Stephen: _Alexander Pope_, 62; and see Cabot to
Hamilton, Nov. 29, 1800; _Cabot_: Lodge, 299.

[140] Binney, in Dillon, iii, 283-84; Washington's _Diary_; MS., Lib.
Cong.

[141] Irving, i, 45; and Lodge: _Washington_, i, 59. Many years later
when he became rich, Washington acquired a good library, part of which
is now in the Boston Athenæum. But as a young and moneyless surveyor he
had no books of his own and his "book" education was limited and
shallow.

[142] Binney, in Dillion, iii, 281-84.

[143] Irving, i, 37, 45; and Sparks, 10.

[144] Irving, i, 27.

[145] Irving, i, 46.

[146] As will appear, the Fairfax estate is closely interwoven into John
Marshall's career. (See vol. II of this work.)

[147] For description of Greenway Court see Pecquet du Bellet, ii, 175.

[148] Washington's _Writings_: Ford, i, footnote to 329.

[149] For a clear but laudatory account of Lord Fairfax see Appendix No.
4 to Burnaby, 197-213. But Fairfax could be hard enough on those who
opposed him, as witness his treatment of Joist Hite. (See _infra_, chap.
V.)

[150] When the Revolution came, however, Fairfax was heartily British.
The objection which the colony made to the title to his estate doubtless
influenced him.

[151] Fairfax was a fair example of the moderate, as distinguished from
the radical or the reactionary. He was against both irresponsible
autocracy and unrestrained democracy. In short, he was what would now be
termed a liberal conservative (although, of course, such a phrase,
descriptive of that demarcation, did not then exist). Much attention
should be given to this unique man in tracing to their ultimate sources
the origins of John Marshall's economic, political, and social
convictions.

[152] Sparks, 11; and Irving, i, 33.

[153] For Fairfax's influence on Washington see Irving, i, 45; and in
general, for fair secondary accounts of Fairfax, see _ib._, 31-46; and
Sparks, 10-11.

[154] Senator Humphrey Marshall says that Thomas Marshall "emulated"
Washington. (Humphrey Marshall, i, 345.)

[155] See _infra_.

[156] Bond of Thomas Marshall as Sheriff, Oct. 26, 1767; Records of
Fauquier County (Va.), Deed Book, iii, 70. Approval of bond by County
Court; Minute Book (from 1764 to 1768), 322. Marshall's bond was "to his
Majesty, George III," to secure payment to the British revenue officers
of all money collected by Marshall for the Crown. (Records of Fauquier
County (Va.), Deed Book, iii, 71.)

[157] Bruce: _Inst._, i, 597, 600; also, ii, 408, 570-74.

[158] Records of Fauquier County (Va.), Deed Book, ii, 42. There is a
curious record of a lease from Lord Fairfax in 1768 to John Marshall for
his life and "the natural lives of Mary his wife and Thomas Marshall his
son and every of them longest living." (Records of Fauquier County
(Va.), Deed Book, iii, 230.) John Marshall was then only thirteen years
old. The lease probably was to Thomas Marshall, the clerk of Lord
Fairfax having confused the names of father and son.

[159] Meade, ii, 218.

[160] In 1773 three deeds for an aggregate of two hundred and twenty
acres "for a glebe" were recorded in Fauquier County to "Thos. Marshall
& Others, Gentlemen, & Vestrymen of Leeds Parish." (Records of Fauquier
County (Va.), Deed Book, V, 401, 403, 422.)

[161] The vestrymen were "the foremost men ... in the parish ... whether
from the point of view of intelligence, wealth or social position."
(Bruce: _Inst._, i, 62; and see Meade, i, 191.)

[162] Bruce: _Inst._, i, 62-93; and see Eckenrode: _S.C. & S._, 13.

[163] Bruce: _Inst._, i, 131 _et seq._

[164] Meade, ii, 219. Bishop Meade here makes a slight error. He says
that Mr. Thompson "lived at first in the family of Colonel Thomas
Marshall, of Oak Hill." Thomas Marshall did not become a colonel until
ten years afterward. (Heitman, 285.) And he did not move to Oak Hill
until 1773, six years later. (Paxton, 20.)

[165] James Thompson was born in 1739. (Meade, ii, 219.)

[166] _Ib._

[167] Forty years later La Rochefoucauld found that the whole family and
all visitors slept in the same room of the cabins of the back country.
(La Rochefoucauld, iv, 595-96.)

[168] "I have not sleep'd above three nights or four in a bed, but,
after walking ... all the day, I lay down before the fire upon a little
hay, straw, fodder or bearskin ... with man, wife, and children, like a
parcel of dogs and cats; and happy is he, who gets the berth nearest the
fire." (Washington to a friend, in 1748; _Writings_: Ford, i, 7.)

Here is another of Washington's descriptions of frontier comforts: "I
not being so good a woodsman as ye rest of my company, striped myself
very orderly and went into ye Bed, as they calld it, when to my
surprize, I found it to be nothing but a little straw matted together
without sheets or any thing else, but only one thread bear [_sic_]
blanket with double its weight of vermin such as Lice, Fleas, &c."
(Washington's _Diary_, March 15, 1747; _ib._, 2.) And see La
Rochefoucauld, iii, 175, for description of homes of farmers in the
Valley forty years later--miserable log huts "which swarmed with
children." Thomas Marshall's little house was much better than, and the
manners of the family were far superior to, those described by
Washington and La Rochefoucauld.

[169] Meade, ii, 219.

[170] _Ib._ Bishop Meade says that Thomas Marshall's sons were sent to
Mr. Thompson again; but Marshall himself told Justice Story that the
Scotch parson taught him when the clergyman lived at his father's house.

[171] Meade, ii, 219. This extract of Mr. Thompson's sermon was
treasonable from the Tory point of view. See _infra_, chap. III.

[172] Records of Fauquier County (Va.), Deed Book, V, 282. This purchase
made Thomas Marshall the owner of about two thousand acres of the best
land in Fauquier County. He had sold his Goose Creek holding in "The
Hollow."

[173] The local legend, current to the present day, is that this house
had the first glass windows in that region, and that the bricks in the
chimney were imported from England. The importation of brick, however,
is doubtful. Very little brick was brought to Virginia from England.

[174] Five more children of Thomas and Mary Marshall were born in this
house: Louis, 1773; Susan, 1775; Charlotte, 1777; Jane, 1779; and Nancy,
1781. (Paxton.)

[175] This volume is now in the possession of Judge J. K. M. Norton, of
Alexandria, Va. On several leaves are printed the names of the
subscribers. Among them are Pelatiah Webster, James Wilson, Nathanael
Greene, John Adams, and others.

[176] _Autobiography._

[177] Binney, in Dillon, iii, 286.

[178] Story and Binney say that Marshall's first schooling was at
Campbell's "academy" and his second and private instruction under Mr.
Thompson. The reverse seems to have been the case.

[179] Meade, ii, 159, and footnote to 160.

[180] _Ib._, 161.

[181] _Ib._

[182] Journal, H.B. (1761-65), 3. Thomas Marshall was seldom out of
office. Burgess, Sheriff, Vestryman, Clerk, were the promising
beginnings of his crowded office-holding career. He became Surveyor of
Fayette County, Kentucky, upon his removal to that district, and
afterwards Collector of Revenue for the District of Ohio. (Humphrey
Marshall, i, 120; and see ii, chap. V, of this work. Thomas Marshall to
Adams, April 28, 1797; MS.) In holding offices, John Marshall followed
in his father's footsteps.

[183] Journal, H.B. (1766-69), 147 and 257.

[184] His election was contested in the House, but decided in Marshall's
favor. (_Ib._ (1761-69), 272, 290, 291.)

[185] _Ib._, (1773-76), 9. County Clerks were then appointed by the
Secretary of State. In some respects the Clerk of the County Court had
greater advantages than the Sheriff. (See Bruce: _Inst._, i, 588 _et
seq._) Dunmore County is now Shenandoah County. The Revolution changed
the name. When Thomas Marshall was appointed Clerk, the House of
Burgesses asked the Governor to issue a writ for a new election in
Fauquier County to fill Marshall's place as Burgess. (_Ib._ (1773-76),
9.)

[186] _Ib._ (1766-69), 163.

[187] _Ib._, 16, 71, 257; (1770-72), 17, 62, 123, 147, 204, 234, 251,
257, 274, 292; (1773-76), 217, 240.

[188] Ambler, Introduction.

[189] Ambler, 17-18.

[190] Henry, i, 71.

[191] _Ib._, 76-77.

[192] Henry, i, 39-48.

[193] Wirt, 71 _et seq._ It passed the House (Journal, H.B. (1761-65),
350); but was disapproved by the Council. (_Ib._, 356; and see Henry, i,
78.)

[194] The "ayes" and "noes" were not recorded in the Journals of the
House; but Jefferson says, in his description of the event, which he
personally witnessed, that Henry "carried with him all the members of
the upper counties and left a minority composed merely of the
aristocracy." (Wirt, 71.) "The members, who, like himself [Henry],
represented the yeomanry of the colony, were filled with admiration and
delight." (Henry, i, 78.)

[195] Wirt, 71. The incident, it appears, was considered closed with the
defeat of the loan-office bill. Robinson having died, nothing further
was done in the matter. For excellent condensed account see Eckenrode:
_R. V._, 16-17.

[196] Declaratory Resolutions.

[197] For the incredible submission and indifference of the colonies
before Patrick Henry's speech, see Henry, i, 63-67. The authorities
given in those pages are conclusive.

[198] _Ib._, 67.

[199] _Ib._, 80-81.

[200] _Ib._, 82-86.

[201] Wirt, 74-76.

[202] Eckenrode: _R. V._, 5-6.

[203] "The members from the upper counties invariably supported Mr.
Henry in his revolutionary measures." (Jefferson's statement to Daniel
Webster, quoted in Henry, i, 87.)

[204] Henry, i, 86.

[205] Henry, i, 86, and authorities there cited in the footnote.

[206] Misquoted in Wirt (79) as "500 guineas."

[207] Jefferson to Wirt, Aug. 14, 1814; _Works_: Ford, xi, 404.

[208] It is most unfortunate that the "ayes" and "noes" were not kept in
the House of Burgesses. In the absence of such a record, Jefferson's
repeated testimony that the up-country members voted and worked with
Henry must be taken as conclusive of Thomas Marshall's vote. For not
only was Marshall Burgess from a frontier county, but Jefferson, at the
time he wrote to Wirt in 1814 (and gave the same account to others
later), had become very bitter against the Marshalls and constantly
attacked John Marshall whom he hated virulently. If Thomas Marshall had
voted out of his class and against Henry, so remarkable a circumstance
would surely have been mentioned by Jefferson, who never overlooked any
circumstance unfavorable to an enemy. Far more positive evidence,
however, is the fact that Washington, who was a Burgess, voted with
Henry, as his letter to Francis Dandridge, Sept. 20, 1765, shows.
(_Writings_: Ford, ii, 209.) And Thomas Marshall always acted with
Washington.

[209] "By these resolutions, Mr. Henry took the lead out of the hands of
those who had heretofore guided the proceedings of the House."
(Jefferson to Wirt, Aug. 14, 1814; _Works_: Ford, xi, 406.)

[210] _Proceedings_, Va. Conv., 1775, March 20, 3; July 17, 3, 5, 7.

[211] Henry, i, 255-61; Wirt, 117-19. Except Henry's speech itself,
Wirt's summary of the arguments of the conservatives is much the best
account of the opposition to Henry's fateful resolutions.

[212] Wirt, 142; Henry, i, 261-66.

[213] _Ib._, 271; and Wirt, 143.

[214] In the absence of the positive proof afforded by a record of the
"ayes" and "noes," Jefferson's testimony, Washington's vote, Thomas
Marshall's tribute to Henry, and above all, the sentiment of the
frontier county he represented, are conclusive testimony as to Thomas
Marshall's stand in this all-important legislative battle which was the
precursor of the iron conflict soon to come in which he bore so heroic a
part. (See Humphrey Marshall, i, 344.)

[215] Washington was appointed a member of the committee provided for in
Henry's second resolution. (Henry, i, 271.)

[216] Thomas Marshall had been ensign, lieutenant, and captain in the
militia, had taken part in the Indian wars, and was a trained soldier.
(Crozier: _Virginia Colonial Militia_, 96.)




Chapter III

A SOLDIER OF THE REVOLUTION

    Our liberties are at stake. It is time to brighten our fire-arms
    and learn to use them in the field. (Marshall to Culpeper Minute
    Men, 1775.)

    Our sick naked, and well naked, our unfortunate men in captivity
    naked. (Washington, 1777.)

    I have seen a regiment consisting of _thirty men_ and a company of
    _one corporal_. (Von Steuben, 1778.)


The fighting men of the up counties lost not a minute's time. Blood had
been shed in New England; blood, they knew, must soon flow in Virginia.
At once Culpeper, Orange, and Fauquier Counties arranged to raise a
regiment of minute men with Lawrence Taliaferro of Orange as colonel,
Edward Stevens of Culpeper as lieutenant, Thomas Marshall of Fauquier as
major.[217] Out over the countryside went the word; and from mountain
cabins and huts in forest clearings, from log abodes in secluded valleys
and on primitive farms, the fighting yeomanry of northern Virginia came
forth in answer.

In the years between Patrick Henry's two epochal appeals in 1765 and
1775, all Virginia, but particularly the back country, had been getting
ready to make answer in terms of rifle and lead. "No man should scruple,
or hesitate a moment, to use arms," wrote Washington in 1769.[218]
Thomas Marshall's minister, Mr. Thompson, preached militant
preparation; Parliament had deprived the colonists of "their just and
legal rights" by acts which were "destructive of their liberties,"
thundered the parson; it had "overawed the inhabitants by British
troops," loaded "great hardships" upon the people, and "reduced the poor
to great want." The preacher exhorted his flock "as men and Christians"
to help "supply the country with arms and ammunition," and referred his
hearers, for specific information, to "the committee of this
county,"[219] whose head undoubtedly was their Burgess and leading
vestryman of the parish, Thomas Marshall.

When news of Concord and Lexington finally trickled through to upper
Virginia, it found the men of her hills and mountains in grim readiness;
and when, soon after, Henry's flaming words came to them, they were
ready and eager to make those words good with their lives. John
Marshall, of course, was one of the band of youths who had agreed to
make up a company if trouble came. In May, 1775, these young
frontiersmen were called together. Their captain did not come, and
Marshall was appointed lieutenant, "instead of a better," as he modestly
told his comrades. But, for his years, "a better" could not have been
found; since 1773 John Marshall had received careful military
instruction from his father.[220] Indeed, during the two years before
his company took the field in actual warfare, the youth had devoted most
of his time to preparing himself, by study and practice, for military
service.[221] So these embryo warriors gathered about their leader to
be told what to do.[222]

Here we get the first glimpse of John Marshall's power over men. "He had
come," the young officer informed his comrades of the backwoods, "to
meet them as fellow soldiers, who were likely to be called on to defend
their country." Their own "rights and liberties" were at stake. Their
brothers in New England had fought and beaten the British; now "it is
time to brighten our fire-arms and learn to use them in the field." He
would show them how to do this. So the boys fell into line, and John
Marshall, bringing his own gun to his shoulder, instructed them in the
manual of arms. He first gave the words of command slowly and distinctly
and then illustrated the movements with his own rifle so that every man
of the company might clearly understand what each order meant and how to
execute it. He then put the company through the drill.[223]

On this muster field we learn how John Marshall looked in his nineteenth
year. He was very tall, six feet at least, slender and erect. His
complexion was dark, with a faint tinge of red. His face was
round--"nearly a circle." His forehead was straight and low, and thick,
strong, "raven black" hair covered his head. Intense eyes "dark to
blackness,"[224] of compelling power, pierced the beholder while they
reassured him by the good nature which shone from them. "He wore a
purple or pale blue hunting-shirt, and trousers of the same material
fringed with white."[225]

At this point, too, we first learn of his bent for oratory. What his
father told him about the debates in the House of Burgesses, the
speeches of Wythe and Lee and Randolph, and above all, Patrick Henry;
what he had dreamed and perhaps practiced in the silent forests and
vacant fields, here now bore public fruit. When he thought that he had
drilled his company enough for the time being, Marshall told them to
fall out, and, if they wished to hear more about the war, to gather
around him and he would make them a speech.[226] And make them a speech
he did. Before his men the youthful lieutenant stood, in his hand his
"round black hat mounted with a buck's tail for a cockade," and spoke to
that company of country boys of the justice of their cause and of those
larger things in life for which all true men are glad to die.

"For something like an hour" he spoke, his round face glowing, the
dormant lightning of his eye for the time unloosed. Lively words they
were, we may be sure; for John Marshall was as ardent a patriot as the
colonies could produce. He had learned the elementary truths of liberty
in the school of the frontier; his soul was on fire with the burning
words of Henry; and he poured forth his immature eloquence not to a
company of peaceful theorists, but to a group of youths ready for the
field. Its premises were freedom and independence; its conclusion was
action. It was a battle speech.[227] This fact is very important to an
understanding of John Marshall's character, and indeed of the blood that
flowed in his veins. For, as we shall find, he was always on the firing
line; the Marshall blood was fighting blood.[228]

But it was not all labor of drill and toil of discipline, heroics of
patriotic speech, or solemn preachments about duty, for the youths of
John Marshall's company. If he was the most earnest, he was also, it
seems, the jolliest person in the whole band; and this deserves especial
note, for his humor was a quality which served not only the young
soldier himself, but the cause for which he fought almost as well as his
valor itself, in the martial years into which he was entering. Indeed
this capacity for leavening the dough of serious purpose with the yeast
of humor and diversion made John Marshall's entire personal life
wholesome and nutritious. Jokes and fun were a part of him, as we shall
see, whether in the army, at the bar, or on the bench.

So when, the business of the day disposed of, Lieutenant Marshall
challenged his sure-eyed, strong-limbed, swift-footed companions to a
game of quoits, or to run a race, or to jump a pole, we find him
practicing that sport and comradeship which, luckily for himself and his
country, he never outgrew. Pitch quoits, then, these would-be soldiers
did, and coursed their races, and vaulted high in their running
jumps.[229] Faster than any of them could their commander run, with his
long legs out-going and his powerful lungs out-winding the best of them.
He could jump higher, too, than anybody else; and from this
accomplishment he got his soldier nickname "Silver Heels" in
Washington's army a year later.[230]

The final muster of the Culpeper Minute Men was in "Major Clayton's old
field" hard by the county seat[231] on September 1, 1775.[232] They were
clad in the uniform of the frontier, which indeed was little different
from their daily apparel. Fringed trousers often of deerskins, "strong
brown linen hunting-shirts dyed with leaves, ... buck-tails in each hat,
and a leather belt about the shoulders, with tomahawk and
scalping-knife" made up their warlike costume.[233] By some
preconcert,--an order perhaps from one of the three superior officers
who had poetic as well as fighting blood in him,--the mothers and wives
of this wilderness soldiery had worked on the breast of each
hunting-shirt in large white letters the words "Liberty or Death,"[234]
with which Patrick Henry had trumpeted the purpose of hitherto
inarticulate America.

Early in the autumn of 1775 came the expected call. Not long had the
"shirt men,"[235] as they were styled, been drilling near the
court-house of Culpeper County when an "express" came from Patrick
Henry.[236] This was a rider from Williamsburg, mounting swift relays as
he went, sometimes over the rough, miry, and hazardous roads, but mostly
by the bridle paths which then were Virginia's principal highways of
land travel. The "express" told of the threatening preparations of Lord
Dunmore, then Royal Governor of Virginia, and bore Patrick Henry's
command to march at once for the scene of action a hundred miles to the
south.

Instantly the Culpeper Minute Men were on the move. "We marched
immediately," wrote one of them, "and in a few days were in
Williamsburg." News of their coming went before them; and when the
better-settled districts were reached, the inhabitants were in terror of
them, for the Culpeper Minute Men were considered as "savage
backwoodsmen" by the people of these older communities.[237] And indeed
they must have looked the part, striding along armed to the teeth with
the alarming weapons of the frontier,[238] clad in the rough but
picturesque war costume of the backwoods, their long hair falling
behind, untied and unqueued.

When they reached Williamsburg half of the minute men were discharged,
because they were not needed;[239] but the other half, marching under
Colonel Woodford, met and beat the enemy at Great Bridge, in the first
fight of the Revolution in Virginia, the first armed conflict with
British soldiers in the colonies since Bunker Hill. In this small but
bloody battle, Thomas Marshall and his son took part.[240]

The country around Norfolk swarmed with Tories. Governor Dunmore had
established martial law, proclaimed freedom of slaves, and summoned to
the Royal standard everybody capable of bearing arms. He was busy
fortifying Norfolk and mounting cannon upon the entrenchments. Hundreds
of the newly emancipated negroes were laboring upon these
fortifications. To keep back the patriots until this military work
should be finished, the Governor, with a force of British regulars and
all the fighting men whom he could gather, took up an almost impregnable
position near Great Bridge, about twenty miles from Norfolk, "in a small
fort on an oasis surrounded by a morass, not far from the Dismal Swamp,
accessible on either side by a long causeway." Here Dunmore and the
Loyalists awaited the Americans.[241]

When the latter came up they made their camp "within gunshot of this
post, in mud and mire, in a village at the southern end of the
causeway." Across this the patriot volunteers threw a breastwork. But,
having no cannon, they did not attack the British position. If only
Dunmore would take the offensive, the Americans felt that they would
win. Legend has it that through a stratagem of Thomas Marshall, the
British assault was brought on. He instructed his servant to pretend to
desert and mislead the Governor as to the numbers opposing him.
Accordingly, Marshall's decoy sought the enemy's lines and told Dunmore
that the insurgents numbered not more than three hundred. The Governor
then ordered the British to charge and take the Virginians, "or die in
the attempt."[242]

"Between daybreak and sunrise," Captain Fordyce, leading his grenadiers
six abreast, swept across the causeway upon the American breastworks.
Marshall himself tells us of the fight. The shots of the sentinels
roused the little camp and "the bravest ... rushed to the works," firing
at will, to meet the British onset. The gallant Fordyce "fell dead
within a few steps of the breastwork.... Every grenadier ... was killed
or wounded; while the Americans did not lose a single man." Full one
hundred of the British force laid down their lives that bloody December
morning, among them four of the King's officers. Small as was this
affair,--which was called "The Little Bunker Hill,"--it was more
terrible than most military conflicts in loss of life in proportion to
the numbers engaged.[243]

This was John Marshall's first lesson[244] in warfare upon the field of
battle. Also, the incidents of Great Bridge, and what went before and
came immediately after, gave the fledgling soldier his earliest
knowledge of that bickering and conflict of authority that for the next
four years he was to witness and experience in far more shocking and
dangerous guise.[245]

Within a few months from the time he was haranguing his youthful
companions in "Major Clayton's old field" in Culpeper County, John
Marshall learned, in terms of blood and death and in the still more
forbidding aspects of jealousy and dissension among the patriots
themselves, that freedom and independence were not to be wooed and won
merely by high-pitched enthusiasm or fervid speech. The young soldier in
this brief time saw a flash of the great truth that liberty can be made
a reality and then possessed only by men who are strong, courageous,
unselfish, and wise enough to act unitedly as well as to fight bravely.
He began to discern, though vaguely as yet, the supreme need of the
organization of democracy.

After the victory at Great Bridge, Marshall, with the Culpeper Minute
Men, marched to Norfolk, where he witnessed the "American soldiers
frequently amuse themselves by firing" into Dunmore's vessels in the
harbor; saw the exasperated Governor imprudently retaliate by setting
the town on fire; and beheld for "several weeks" the burning of
Virginia's metropolis.[246] Marshall's battalion then marched to
Suffolk, and was discharged in March, 1776.[247]

With this experience of what war meant, John Marshall could have
returned to the safety of Oak Hill and have spent, at that pleasant
fireside, the red years that were to follow, as indeed so many in the
colonies who then and after merely prated of liberty, actually did. But
it was not in the Marshall nature to support a cause with lip service
only. Father and son chose the sterner part; and John Marshall was now
about to be schooled for four years by grim instructors in the knowledge
that strong and orderly government is necessary to effective liberty. He
was to learn, in a hard and bitter school, the danger of provincialism
and the value of Nationality.

Not for long did he tarry at the Fauquier County home; and not an
instant did the father linger there. Thomas Marshall, while still
serving with his command at Great Bridge, was appointed by the
Legislature major of the Third Virginia Regiment; and at once entered
the Continental service;[248] on July 30, 1776, four months after the
Culpeper Minute Men, their work finished, had been disbanded by the new
State, his son was commissioned lieutenant in the same regiment. The
fringed hunting-shirt and leggings, the buck-tail headgear,
scalping-knife, and tomahawk of the backwoods warrior now gave place to
the buff and blue uniform, the three-cornered hat,[249] the sword, and
the pistol of the Continental officer; and Major Thomas Marshall and his
son, Lieutenant John Marshall, marched away to the north to join
Washington, and under him to fight and suffer through four black and
heart-breaking years of the Revolution.

It is needful, here, to get clearly in our minds the state of the
American army at this time. What particular year of the Revolution was
darkest up almost to the victorious end, it is hard to say. Studying
each year separately one historian will conclude that 1776 sounded the
depths of gloom; another plumbs still greater despair at Valley Forge;
still another will prove that the bottom was not reached until '79 or
'80. And all of them appear to be right.[250]

Even as early as January, 1776, when the war was new, and enthusiasm
still warm, Washington wrote to the President of Congress, certain
States having paid no attention to his application for arms: "I have, as
the last expedient, sent one or two officers from each regiment into the
country, with money to try if they can buy."[251] A little later he
writes: "My situation has been such, that I have been obliged to use art
to conceal it from my own officers."[252]

Congress even placed some of Washington's little army under the
direction of the Committee of Safety of New York; and Washington thus
wrote to that committee: "I should be glad to know how far it is
conceived that my powers over them [the soldiers] extend, or whether I
have any at all. Sure I am that they cannot be subjected to the
direction of both"[253] (the committee and himself).

In September the Commander-in-Chief wrote to the President of Congress
that the terms of enlistment of a large portion of the army were about
to expire, and that it was direful work "to be forming armies
constantly, and to be left by troops just when they begin to deserve the
name, or perhaps at a moment when an important blow is expected."[254]

Four days later Washington again told Congress, "beyond the possibility
of doubt, ... unless some speedy and effectual measures are adopted by
Congress, our cause will be lost."[255] On December 1, 1776, the army
was "greatly reduced by the departure of the Maryland _Flying Camp_ men,
and by sundry other causes."[256] A little afterwards General Greene
wrote to Governor Cooke [of Rhode Island] that "two brigades left us at
Brunswick, notwithstanding the enemy were within two hours' march and
coming on."[257]

Thirteen days before the Christmas night that Washington crossed the
Delaware and struck the British at Trenton, the distressed American
commander found that "our little handful is daily decreasing by sickness
and other causes."[258] And the very day before that brilliant exploit,
Washington was compelled to report that "but very few of the men have
[re]enlisted" because of "their wishes to return home, the
nonappointment of officers in some instances, the turning out of good
and appointing of bad in others, and the incomplete or rather no
arrangement of them, a work unhappily committed to the management of
their States; nor have I the most distant prospect of retaining them ...
notwithstanding the most pressing solicitations and the obvious
necessity for it." Washington informed Reed that he was left with only
"fourteen to fifteen hundred effective men. This handful and such
militia as may choose to join me will then compose our army."[259] Such
was American patriotic efficiency, as exhibited by "State Sovereignty,"
the day before the dramatic crossing of the Delaware.

A month earlier the general of this assemblage of shreds and patches had
been forced to beg the various States for militia in order to get in "a
number of men, if possible, to keep up the appearance of our army."[260]
And he writes to his brother Augustine of his grief and surprise to find
"the different States so slow and inattentive.... In ten days from this
date there will not be above two thousand men, if that number, of the
fixed established regiments, ... to oppose Howe's whole army."[261]

Throughout the war, the neglect and ineffectiveness of the States, even
more than the humiliating powerlessness of Congress, time and again all
but lost the American cause. The State militia came and went almost at
will. "The impulse for going home was so irresistible, that it answered
no purpose to oppose it. Though I would not discharge them," testifies
Washington, "I have been obliged to acquiesce, and it affords one more
melancholy proof, how delusive such dependencies [State controlled
troops] are."[262]

"The Dependence, which the Congress have placed upon the militia," the
distracted general complains to his brother, "has already greatly
injured, and I fear will totally ruin our cause. Being subject to no
controul themselves, they introduce disorder among the troops, whom you
have attempted to discipline, while the change in their living brings on
sickness; this makes them Impatient to get home, which spreads
universally, and introduces abominable desertions. In short, it is not
in the power of words to describe the task I have to act."[263]

Nor was this the worst. Washington thus pours out his soul to his
nephew: "Great bodies of militia in pay that never were in camp; ...
immense quantities of provisions drawn by men that never rendered ...
one hour's service ... every kind of military [discipline] destroyed by
them.... They [the militia] come without any conveniences and soon
return. I discharged a regiment the other day that had in it fourteen
rank and file fit for duty only.... The subject ... is not a fit one to
be publicly known or discussed.... I am wearied to death all day ... at
the conduct of the militia, whose behavior and want of discipline has
done great injury to the other troops, who never had officers, except in
a few instances, worth the bread they eat."[264]

Conditions did not improve in the following year, for we find Washington
again writing to his brother of "militia, who are here today and gone
tomorrow--whose way, like the ways of [Pr]ovidence, are almost
inscrutable."[265] Baron von Steuben testifies thus: "The eternal ebb
and flow of men ... who went and came every day, rendered it impossible
to have either a regiment or company complete.... I have seen a regiment
consisting of _thirty men_ and a company of _one corporal_."[266] Even
Thomas Paine, the arch-enemy of anything resembling a regular or
"standing" army, finally declared that militia "will not do for a long
campaign."[267] Marshall thus describes the predicament in which
Washington was placed by the inconstancy of this will-o'-the-wisp
soldiery: "He was often abandoned by bodies of militia, before their
places were filled by others.... The soldiers carried off arms and
blankets."[268]

Bad as the militia were,[269] the States did not keep up even this
happy-go-lucky branch of the army. "It is a matter of astonishment,"
savagely wrote Washington to the President of Pennsylvania, two months
before Valley Forge, "to every part of the continent, to hear that
Pennsylvania, the most opulent and populous of all the States, has but
twelve hundred militia in the field, at a time when the enemy are
endeavoring to make themselves completely masters of, and to fix their
winter quarters in, her capital."[270] Even in the Continental line, it
appears, Pennsylvania's quota had "never been above one third full; and
now many of them are far below even that."[271]

Washington's wrath at Pennsylvania fairly blazed at this time, and the
next day he wrote to Augustine Washington that "this State acts most
infamously, the People of it, I mean, as we derive little or no
assistance from them.... They are in a manner, totally disaffected or in
a kind of Lethargy."[272]

The head of the American forces was not the only patriot officer to
complain. "The Pennsylvania Associators [militia] ... are deserting ...
notwithstanding the most spirited exertions of their officers," reported
General Livingston in the midsummer of 1776.[273] General Lincoln and
the Massachusetts Committee tried hard to keep the militia of the Bay
State from going home; but, moaned Lee, "whether they will succeed,
Heaven only knows."[274]

General Sullivan determined to quit the service because of abuse and
ill-treatment.[275] For the same reason Schuyler proposed to
resign.[276] These were not examples of pique; they denoted a general
sentiment among officers who, in addition to their sufferings, beheld
their future through none too darkened glasses. They "not only have the
Mortification to See every thing live except themselves," wrote one
minor officer in 1778, "but they see their private fortune wasting away
to make fat those very Miscreants [speculators] ... they See their
Country ... refuse to make any future provision for them, or even to
give them the Necessary Supplies."[277]

Thousands of the Continentals were often practically naked; Chastellux
found several hundred in an invalid camp, not because they were ill, but
because "they were not covered even with rags."[278] "Our sick naked,
and well naked, our unfortunate men in captivity naked"! wailed
Washington in 1777.[279] Two days before Christmas of that year he
informed Congress that, of the force then under his immediate command,
nearly three thousand were "barefoot and otherwise naked."[280] Sickness
was general and appalling. Smallpox raged throughout the army even from
the first.[281] "The Regimental Surgeons are immediately to make
returns ... of all the men in their Regiments, who have not had the
small Pox,"[282] read the orders of the day just after New Year's Day,
in 1778.

Six years after Concord and Lexington, three hundred American soldiers,
in a body, wished to join the British.[283] Stern measures were taken to
prevent desertion and dishonesty and even to enforce the most ordinary
duties of soldiers. "In the afternoon three of our reg^t were
flogged;--2 of them received one hundred lashes apiece for attempting to
desert; the other received 80 for enlisting twice and taking two
bounties,"[284] Wild coolly enters in his diary. And again: "This
afternoon one of our men was hanged on the grand parade for attempting
to desert to the enemy";[285] and "at 6 ock P.M. a soldier of Col.
Gimatts Battalion was hanged."

Sleeping on duty meant "Twenty Lashes on ... [the] bare back" of the
careless sentry.[286] A soldier convicted of "getting drunk & losing his
Arms" was "Sentenc'd to receive 100 Lashes on his bare back, & pay for
his Arms lost."[287] A man who, in action, "turns his back on the Enemy"
was ordered to be "instantly put ... to Death" by the officers.[288] At
Yorktown in May, 1781, Wayne ordered a platoon to fire on twelve
soldiers who were persuading their comrades not to march; six were
killed and one wounded, who was, by Wayne's command, enforced by a
cocked pistol, then finished with the bayonet thrust into the prostrate
soldier by a comrade.[289]

Such was the rough handling practiced in the scanty and ill-treated army
of individualists which Washington made shift to rally to the patriot
colors.[290] It was not an encouraging omen. But blacker still was the
disorganizing effect of local control of the various "State Lines" which
the pompous authority of the newborn "sovereign and independent"
Commonwealths asserted.[291]

Into this desperate confusion came the young Virginia lieutenant. Was
this the manner of liberty? Was this the way a people fighting for their
freedom confronted their enemy? The dreams he had dreamed, the visions
he had seen back in his Virginia mountains were clad in glories as
enchanting as the splendors of their tree-clad summits at break of
day--dreams and visions for which strong men should be glad of the
privilege of dying if thereby they might be won as realities for all the
people. And indeed at this time, and in the even deadlier days that
followed, young John Marshall found strong men by his side willing to
die and to go through worse than death to make their great dream come
true.

But why thus decrepit, the organization called the American army? Why
this want of food even for such of the soldiers as were willing and
eager to fight for their country? Why this scanty supply of arms? Why
this avoidable sickness, this needless suffering, this frightful waste?
What was the matter? Something surely was at fault. It must be in the
power that assumed to direct the patriot army. But whence came that
power? From Congress? No. Congress had no power; after a while, it did
not even have influence. From the States? Yes; that was its
source--there was plenty of power in the States.

But what kind of power, and how displayed? One State did one thing;
another State did another thing.[292] One State clothed its troops well;
another sent no supplies at all.[293] One regiment of Maryland militia
had no shirts and the men wrapped blankets about their bare bodies.[294]
One day State troops would come into camp, and the next day leave. How
could war be conducted, how could battles be fought and won, through
such freakish, uncertain power as that?

But how could this vaunted liberty, which orators had proclaimed and
which Lieutenant Marshall himself had lauded to his frontier companions
in arms, be achieved except by a well-organized army, equipped,
supplied, and directed by a competent central Government? This was the
talk common among the soldiers of the Continental establishment in which
John Marshall was a lieutenant. In less than two years after he entered
the regular service, even officers, driven to madness and despair by the
pusillanimous weakness of Congress, openly denounced that body; and the
soldiers themselves, who saw their wounds and sufferings coming to
naught, cursed that sham and mockery which the jealousy and shallowness
of State provincialism had set up in place of a National
Government.[295]

All through the latter half of 1776, Lieutenant Marshall of the Third
Virginia Regiment marched, suffered, retreated and advanced, and
performed his duties without complaint. He did more. At this time, when,
to keep up the sinking spirits of the men was almost as important as was
ammunition, young Marshall was the soul of good humor and of cheer; and
we shall find him in a few months heartening his starving and freezing
comrades at Valley Forge with quip and jest, a center from which
radiated good temper and a hopeful and happy warmth. When in camp
Marshall was always for some game or sport, which he played with
infinite zest. He was the best quoit-thrower in the regiment. His long
legs left the others behind in foot-races or jumping contests.

So well did he perform his work, so highly did he impress his superior
officers, that, early in December, 1776, he was promoted to be
captain-lieutenant, to rank from July 31, and transferred to the
Fifteenth Virginia Line.[296] Thus he missed the glory of being one of
that immortal company which on Christmas night, 1776, crossed the
Delaware with Washington and fell upon the British at Trenton. His
father, Major Thomas Marshall, shared in that renown;[297] but the days
ahead held for John Marshall his share of fighting in actual battle.

Sick, ill-fed, dirty, and ragged, but with a steady nucleus of regular
troops as devoted to their great commander as they were disgusted with
the hybrid arrangement between the States and Congress, Washington's
army worried along. Two months before the battle of the Brandywine, the
American General informed the Committee of Congress that "no army was
ever worse supplied than ours ... our Soldiers, the greatest part of
last Campaign, and the whole of this, have scarcely tasted any kind of
Vegetables; had but little salt and Vinegar." He told of the "many
putrid diseases incident to the Army, and the lamentable mortality,"
which this neglect of soldiers in the field had caused. "Soap," says he,
"is another article in great demand," but not to be had. He adds,
sarcastically: "A soldier's pay will not enable him to purchase [soap]
by which his ... consequent dirtiness adds not a little to the disease
of the Army."[298]

Such was the army of which John Marshall was a part when it prepared to
meet the well-fed, properly clad, adequately equipped British veterans
under Howe who had invaded Pennsylvania. Even with such a force
Washington felt it necessary to make an impression on disaffected[299]
Philadelphia, and, for that purpose, marched through the city on his way
to confront the enemy. For it was generally believed that the American
army was as small in numbers[300] as it was wretched in equipment. A
parade of eleven thousand men[301] through the Tory-infested metropolis
would, Washington hoped, hearten patriot sympathizers and encourage
Congress. He took pains that his troops should make the best appearance
possible. Arms were scoured and the men wore sprigs of green in their
headgear. Among the orders for the march through the seat of government
it was directed: "If any Sold^r. shall dare to quit his ranks He shall
receive 39 Lashes at the first halting place afterwards.... Not a
Woman[302] belonging to the Army is to be seen with the troops on their
March through the City."[303]

The Americans soon came in contact with the enemy and harassed him as
much as possible. Many of Washington's men had no guns. Although fewer
militia came to his aid than Congress had called for, testifies
Marshall, yet "more appeared than could be armed. Those nearest danger
were, as usual, most slow in assembling."[304]

Upon Wayne's suggestion, Washington formed "a corps of light infantry
consisting of nine officers, eight sergeants, and a hundred rank and
file, from each brigade" and placed them under the command of General
Maxwell who had acquired a reputation as a hard fighter.[305] Among
these picked officers was Captain-Lieutenant John Marshall. Maxwell's
command was thrown forward to Iron Hill. "A choice body of men" was
detailed from this select light infantry and, during the night, was
posted on the road along which it was believed one column of the British
army would advance. The small body of Americans had no artillery and its
only purpose was to annoy the enemy and retard his progress. The British
under Cornwallis attacked as soon as they discovered Maxwell's troops.
The Americans quickly were forced to retreat, having lost forty killed
and wounded. Only three of the British were killed and but nineteen were
wounded.[306]

This action was the first engagement in which Marshall took part after
the battle of Great Bridge. It is important only as fixing the command
to which he was assigned. Marshall told Justice Story that he was in the
Iron Hill fight;[307] and it is certain, therefore, that he was in
Maxwell's light infantry and one of the little band picked from that
body of choice troops, for the perilous and discouraging task of
checking the oncoming British thousands.

The American army retreated to the Brandywine, where on the 9th of
September Washington stationed all his forces except the light infantry
on the left of the river. The position was skillfully chosen, but vague
and conflicting reports[308] of the movement of the British finally
resulted in American disaster.

The light infantry was posted among the hills on the right of the stream
along the road leading to Chadd's Ford, in order to skirmish with the
British when they approached, and, if possible, prevent them from
crossing the river. But the enemy, without much effort, drove the
Americans across the Brandywine, neither side suffering much loss.[309]

Washington now made his final dispositions for battle. The command to
which Marshall belonged, together with other detachments under the
general direction of Anthony Wayne, were placed opposite the British at
Chadd's Ford. Small parties of selected men crossed over and attacked
the British on the other side of the stream. In one of these skirmishes
the Americans "killed a British captain with ten or fifteen privates,
drove them out of the wood and were on the point of taking a field
piece." But large numbers of the enemy hurried forward and again the
Americans were thrown across the river. Marshall was in this party.[310]

Thomas Marshall, now colonel,[311] held the advanced position under
Sullivan at the right; and his regiment did the hardest fighting and
suffered the heaviest losses on that unhappy day. When Cornwallis, in
greatly superior numbers, suddenly poured down upon Sullivan's division,
he all but surprised the Continentals and drove most of them flying
before him;[312] but Colonel Marshall and his Virginians refused to be
stampeded. That regiment "maintained its position without losing an
inch of ground until both its flanks were turned, its ammunition nearly
expended, and more than half the officers and one third of the soldiers
were killed and wounded."[313] Colonel Marshall had two horses shot
under him. But, cut to pieces as they were, no panic appeared in this
superb Virginia command and they "retired in good order."[314]

While Thomas Marshall and his Third Virginia Line were thus checking
Cornwallis's assault on the right, the British charged, in dense masses,
across the Brandywine, at Chadd's Ford, upon Wayne's division, to which
Captain-Lieutenant John Marshall had been assigned. The Americans made a
show of resistance, but, learning of the rout of their right wing,
quickly gave way.[315]

"Nearly six hundred British ... were killed or wounded; and the
Americans lost eleven pieces of artillery and above a thousand men, of
whom the third part were prisoners," according to the British
statement.[316] And by their own account the Americans lost three
hundred killed, six hundred wounded, and between three and four hundred
prisoners.[317]

Both British and American narratives agree that the conduct of the
Continental troops at Brandywine was most unequal in stanchness,
discipline, and, courage. John Marshall himself wrote: "As must ever be
the case in new-raised armies, unused to danger and from which
undeserving officers have not been expelled, their conduct was not
uniform. Some regiments, especially those which had served the preceding
campaign, maintained their ground with the firmness and intrepidity of
veterans, while others gave way as soon as they were pressed."[318]

But the inefficiency of the American equipment gave some excuse for the
fright that seized upon so many of them. For, testifies Marshall, "many
of their muskets were scarcely fit for service; and being of unequal
caliber, their cartridges could not be so well fitted, and consequently,
their fire could not do as much execution as that of the enemy. This
radical defect was felt in all the operations of the army."[319]

So ended the battle of the Brandywine, the third formal armed conflict
in which John Marshall took part. He had been in skirmish after
skirmish, and in all of them had shown the characteristic Marshall
coolness and courage, which both father and son exhibited in such
striking fashion on this September day on the field where Lafayette
fell wounded, and where the patriot forces reeled back under the all
but fatal blows of the well-directed British regiments.[320]

It is small wonder that the Americans were beaten in the battle of the
Brandywine; indeed, the wonder is that the British did not follow up
their victory and entirely wipe out the opposing patriots. But it is
astonishing that the American army kept up heart. They were even "in
good spirits" as Washington got them in hand and directed their
retreat.[321]

They were pretty well scattered, however, and many small parties and
numerous stragglers were left behind. Maxwell's men, among whom was John
Marshall, were stationed at Chester as "a rallying point" for the
fragments which otherwise would disperse or be captured. Much
maneuvering followed by both British and Americans. At sight of a
detachment of the enemy approaching Wilmington, the Delaware militia
"dispersed themselves," says Marshall.[322] Soon the two armies again
faced one another. Marshall thus describes the situation: "The advanced
parties had met, and were beginning to skirmish, when they were
separated by a heavy rain, which, becoming more and more violent,
rendered the retreat of the Americans a measure of absolute
necessity."[323]

Through a cold and blinding downpour, over roads deep with mud,
Captain-Lieutenant Marshall marched with his retreating comrades. All
day they struggled forward, and nearly all night. They had no time to
eat and little or no food, even if they had had the time. Before the
break of a gray, cold, rainy September dawn, a halt was called, and an
examination made of arms and ammunition. "Scarcely a musket in a
regiment could be discharged," Marshall records, "and scarcely one
cartridge in a box was fit for use," although "forty rounds per man had
just been drawn"--this because the cartridge boxes had been ill-made and
of improper material.

Gun locks were loose, declares Marshall, because flimsily put on; the
muskets were scarcely better than clubs. Hardly any of the soldiers had
bayonets.[324] "Never" had the patriot army been "in such imminent
peril," he asserts--and all because of the inefficiency or worse of the
method of supplies. Well might Washington's dilapidated troops thank
Providence for the bitter weather that drenched through and through both
officers and men and soaked their ammunition, for "the extreme severity
of the weather had entirely stopped the British army."[325]

Yet Washington was determined to block the British march on
Philadelphia. He made shift to secure some fresh ammunition[326] and
twice moved his army to get in front of the enemy or, failing in that,
"to keep pace with them."[327] To check their too rapid advance
Washington detached the troops under Wayne, among whom was John
Marshall.[328] They found the "country was so extensively disaffected
that Sir William Howe received accurate accounts of his [Wayne's]
position and of his force. Major-General Grey was detached to surprise
him [Wayne] and effectually accomplished his purpose." At eleven o'clock
at night Grey drove in Wayne's pickets with charged bayonets, and in a
desperate midnight encounter killed and wounded one hundred and fifty of
his men.[329] General Smallwood, who was to have supported Wayne, was
less than a mile away, but his militia, who, writes Marshall, "thought
only of their own safety, having fallen in with a party returning from
the pursuit of Wayne, fled in confusion with the loss of only one
man."[330]

Another example, this, before John Marshall's eyes, of the unreliability
of State-controlled troops;[331] one more paragraph in the chapter of
fatal inefficiency of the so-called Government of the so-called United
States. Day by day, week by week, month by month, year by year, these
object lessons were witnessed by the young Virginia officer. They made
a lifelong impression upon him and had an immediate effect. More and
more he came to depend on Washington, as indeed the whole army did also,
for all things which should have come from the Government itself.

Once again the American commander sought to intercept the British, but
they escaped "by a variety of perplexing maneuvers," writes Washington,
"thro' a Country from which I could not derive the least intelligence
(being to a man disaffected)" and "marched immediately toward
Philadelphia."[332] For the moment Washington could not follow,
although, declares Marshall, "public opinion" was demanding and Congress
insisting that one more blow be struck to save Philadelphia.[333] His
forces were not yet united; his troops utterly exhausted.

Marching through heavy mud, wading streams, drenched by torrential
rains, sleeping on the sodden ground "without tents ... without shoes
or ... clothes ... without fire ... without food,"[334] to use
Marshall's striking language, the Americans were in no condition to
fight the superior forces of the well-found British. "At least one
thousand men are bare-footed and have performed the marches in that
condition," Washington informed the impatient Congress.[335] He did his
utmost; that brilliant officer, Alexander Hamilton, was never so
efficient; but nearly all that could be accomplished was to remove the
military stores at Philadelphia up the Delaware farther from the
approaching British, but also farther from the American army.
Philadelphia itself "seemed asleep, or dead, and the whole State scarce
alive. Maryland and Delaware the same," wrote John Adams in his
diary.[336]

So the British occupied the Capital, placing most of their forces about
Germantown. Congress, frightened and complaining, fled to York. The
members of that august body, even before the British drove them from
their cozy quarters, felt that "the prospect is chilling on every side;
gloomy, dark, melancholy and dispiriting."[337] Would Washington never
strike? Their impatience was to be relieved. The American commander had,
by some miracle, procured munitions and put the muskets of his troops in
a sort of serviceable order; and he felt that a surprise upon Germantown
might succeed. He planned his attack admirably, as the British
afterwards conceded.[338] In the twilight of a chilling October day,
Washington gave orders to begin the advance.

Throughout the night the army marched, and in the early morning[339] the
three divisions into which the American force was divided threw
themselves upon the British within brief intervals of time. All went
well at first. Within about half an hour after Sullivan and Wayne had
engaged the British left wing, the American left wing, to which John
Marshall was now attached,[340] attacked the front of the British right
wing, driving that part of the enemy from the ground. With battle shouts
Marshall and his comrades under General Woodford charged the retreating
British. Then it was that a small force of the enemy took possession of
the Chew House and poured a murderous hail of lead into the huzzaing
American ranks. This saved the day for the Royal force and turned an
American victory into defeat.[341]

It was a dramatic struggle in which John Marshall that day took part.
Fighting desperately beside them, he saw his comrades fall in heaps
around him as they strove to take the fiercely defended stone house of
the Tory Judge. A fog came up so thick that the various divisions could
see but a little way before them. The dun smoke from burning hay and
fields of stubble, to which the British had set fire, made thicker the
murk until the Americans fighting from three different points could not
tell friend from foe.[342] For a while their fire was directed only by
the flash from what they thought must be the guns of the enemy.[343]

The rattle of musketry and roar of cannon was like "the crackling of
thorns under a pot, and incessant peals of thunder," wrote an American
officer in an attempt to describe the battle in a letter to his
relatives at home.[344] Through it all, the Americans kept up their
cheering until, as they fought, the defeat was plain to the most
audacious of them; and retreat, with which they had grown so familiar,
once more began. For nine miles the British pursued them, the road
stained with blood from the beaten patriots.[345] Nearly a thousand of
Washington's soldiers were killed or wounded, and over four hundred were
made prisoners on that ill-fated day, while the British loss was less
than half these numbers.[346]

Two months of service followed, as hard as the many gone before with
which Fate had blackened the calendar of the patriot cause. Washington
was frantically urged to "storm" Philadelphia: Congress wished it; a
"torrent of public opinion" demanded it; even some of Washington's
officers were carried off their feet and advised "the mad enterprise,"
to use Marshall's warm description of the pressure upon his
commander.[347] The depreciation of the Continental paper money, the
increasing disaffection of the people, the desperate plight of American
fortunes, were advanced as reasons for a "grand effort" to remedy the
ruinous situation. Washington was immovable, and his best officers
sustained him. Risking his army's destruction was not the way to stop
depreciation of the currency, said Washington; its value had fallen for
want of taxes to sustain it and could be raised only by their levy.[348]
And "the corruption and defection of the people, and their unwillingness
to serve in the army of the United States, were evils which would be
very greatly increased by an unsuccessful attempt on Philadelphia."[349]

So black grew American prospects that secret sympathizers with the
British became open in their advocacy of the abandonment of the
Revolution. A Philadelphia Episcopal rector, who had been chaplain of
Congress, wrote Washington that the patriot cause was lost and besought
him to give up the struggle. "The most respectable characters" had
abandoned the cause of independence, said Duché. Look at Congress. Its
members were "obscure" and "distinguished for the weakness of their
understandings and the violence of their tempers ... chosen by a little,
low, faction.... Tis you ... only that support them." And the army! "The
whole world knows that its only existence depends on you." Consider the
situation: "Your harbors are blocked up, your cities fall one after the
other; fortress after fortress, battle after battle is lost.... How
fruitless the expense of blood!" Washington alone can end it. Humanity
calls upon him to do so; and if he heeds that call his character "will
appear with lustre in the annals of history."[350] Deeply offended,
Washington sent the letter to Congress, which, however, continued to
find fault with him and to urge an attack upon the British in the
Capital.

Although Washington refused to throw his worn and hungry troops upon the
perfectly prepared and victorious enemy entrenched in Philadelphia, he
was eager to meet the British in the open field. But he must choose the
place. So when, early in December, Howe's army marched out of
Philadelphia the Americans were ready. Washington had taken a strong
position on some hills toward the Schuylkill not far from White Marsh.
After much maneuvering by the British and effective skirmishing by
detachments of the patriots,[351] the two armies came into close
contact. Not more than a mile away shone the scarlet uniforms of the
Royal troops. Washington refused to be lured from his advantageous
ground.[352] Apparently the British were about to attack and a decisive
battle to be fought. After Brandywine and Germantown, another defeat
would have been ruinous.

Washington personally animated his men. Marshall, who witnessed it, thus
describes the scene: "The American chief rode through every brigade of
his army, delivering, in person, his orders respecting the manner of
receiving the enemy, exhorting his troops to rely principally on the
bayonet, and encouraging them by the steady firmness of his countenance,
as well as by his words, to a vigorous performance of their duty."[353]

These words make one see, as one reads, the great Virginian in his
noblest aspect--calm in the face of possible disaster, his spirit
burning brightest on the very fuel of danger itself, his clear mind
unclouded by what was likely to befall.

Each division, each regiment, each company, was given plain and
practical orders for the expected conflict. And we may be sure that each
man, private as well as officer, took heart as he looked upon the giant
figure and listened to the steady directions and undismayed
encouragement of his chief. Certain it is that John Marshall so felt and
thought. A rare picture, this, full of life and color, that permits us
to behold the growth in the young soldier's soul of that faith in and
devotion to George Washington, seeds of which had been planted in his
childhood days in the Blue Ridge home.

Finally the British, seeing the resolute front of the Americans and
already bleeding from the fierce thrusts of Morgan's Virginia riflemen,
suddenly withdrew to Philadelphia,[354] and Washington's army went into
winter quarters on the hills of Valley Forge.


FOOTNOTES:

[217] Slaughter, 107-08. This was "the first minute battalion raised
within this Commonwealth." (Memorial of Thomas Marshall to the Virginia
Legislature for military "emoluments"; MS. Archives, Va. St. Lib.)
Appendix IV.

[218] Washington to Mason, April 5, 1769; _Writings_: Ford, ii, 263.

[219] Meade, ii, 219.

[220] Binney, in Dillon, iii, 286.

[221] _Ib._

[222] Statement of eye-witness. (Binney, in Dillon, iii, 287.)

[223] _Ib._, 288.

[224] In all descriptions of Marshall, it is stated that his eyes were
black and brilliant. His portraits, however, show them as dark brown,
but keen and piercing.

[225] Binney, in Dillon, iii, 287-88.

[226] _Ib._

[227] Binney, in Dillon, iii, 288.

[228] Not only do we find Marshalls, father and sons, taking gallant
part in the Revolutionary War, but, thereafter, advocates of war with
any country when the honor or interest of America was at stake.

[229] Binney, in Dillon, iii, 288.

[230] _Infra_, chap. IV.

[231] Slaughter, 107-08. But Binney's informant says that it was twenty
miles from the court-house. (Binney, in Dillon, iii, 286.)

[232] Slaughter, 107-08; and certificate of J. Marshall in pension claim
of William Payne; MSS. Rev. War, S. F. no. 8938-1/2, Pension Bureau.

[233] Slaughter, 107-08.

[234] _Ib._

[235] Campbell, 607-14.

[236] Slaughter, 107-08; certificate of J. Marshall in pension claim of
David Jameson; MSS. Rev. War, S. F. no. 5607, Pension Bureau.

[237] Only the Tories and the disaffected were frightened by these
back-countrymen. Apparently Slaughter took this for granted and failed
to make the distinction.

[238] "The people hearing that we came from the backwoods, and seeing
our savage-looking equipments, seemed as much afraid of us as if we had
been Indians," writes the chronicler of that march. But the people, it
appears, soon got over their fright; for this frontier soldiery, as one
of them relates, "took pride in demeaning ourselves as patriots and
gentlemen, and the people soon treated us with respect and great
kindness." (Slaughter, 107-08.)

[239] Slaughter, 107-08.

[240] _Ib._

[241] Campbell, 633-34; Eckenrode: _R. V._, 81, 82.

[242] Burk, iv, 85; and Lossing, ii, 535-36.

[243] Marshall, i, 69; and Campbell, 635.

[244] Marshall to Samuel Templeman, Richmond, Sept. 26, 1832, supporting
latter's claim for pension; MSS. Rev. War, S. F. no. 6204, Pension
Bureau.

[245] For the conduct of the men then in supreme authority in Virginia
see Wirt, 166-81; and Henry, i, 333-36; also, Campbell, 636 _et seq._;
and see Eckenrode: _R. V._, 75.

[246] Marshall, i, 69; and see Eckenrode: _R. V._, chap. iii, for the
best account that has been given of this important episode. Dr.
Eckenrode's narrative is a complete statement, from original sources, of
every phase of this initial armed conflict between the patriots and
Royalists in Virginia. Also see affidavit of Marshall in pension claim
of William Payne, April 26, 1832; MSS. Rev. War, S. F. no. 8938-1/2,
Pension Bureau.

[247] Affidavit of Marshall in pension claim of William Payne, April 26,
1832: MSS. Rev. War, S. F. no. 8938-1/2, Pension Bureau.

[248] Memorial of Thomas Marshall. (_Supra_, and Appendix IV.)

[249] This uniform was rare; it is probable, however, that Thomas
Marshall procured it for himself and son. He could afford it at that
time, and he was a very proud man.

[250] Chastellux found the army nearly disbanded from necessity in 1782.
(Chastellux, translator's note to 60.)

[251] Washington to President of Congress, Jan. 24, 1776; _Writings_:
Ford, iii, 372-73.

[252] Washington to Reed, Feb. 10, 1776; _ib._, 413.

[253] Washington to Committee of Safety of New York, April 27, 1776;
_Writings_: Ford, iv, 51-52.

[254] Washington to President of Congress, Sept. 20, 1776; _ib._, 422.

[255] Washington to President of Congress, Sept. 24, 1776; _ib._, 439.

[256] Washington to Major-General Lee, Dec. 1, 1776; _ib._, V, 62.

[257] General Greene to Governor Cooke, Dec. 4, 1776; _ib._, footnote to
62.

[258] Washington to President of Congress, Dec. 12, 1776; _Writings_:
Ford, v, 84.

[259] Washington to President of Congress, Dec. 24, 1776; _ib._, 129-30.
While Washington was desperately badly off, he exaggerates somewhat in
this despondent report, as Mr. Ford's footnote (_ib._, 130) shows.

[260] Washington to President of Congress, Nov. 11, 1776; _ib._, 19.

[261] Washington to John Augustine Washington, Nov. 19, 1776;
_Writings_: Ford, v, 38-39.

[262] Washington to President of Congress, Sept. 8, 1776; _ib._, iv,
397.

[263] Washington to John Augustine Washington, Sept. 22, 1776; _ib._,
429.

[264] Washington to Lund Washington, Sept. 30, 1776; _Writings_: Ford,
iv, 457-59.

[265] Washington to John Augustine Washington, Feb. 24, 1777; _ib._, v,
252. The militia officers were elected "without respect either to
service or experience." (Chastellux, 235.)

[266] Kapp, 115.

[267] _The Crisis_: Paine; _Writings_: Conway, i, 175.

[268] Marshall (1st ed.), iii, 66.

[269] The militia were worse than wasteful and unmanageable; they
deserted by companies. (Hatch, 72-73.)

[270] Washington to Wharton, Oct. 17, 1777: _Writings_: Ford, vi,
118-19.

[271] _Ib._

[272] Washington to John Augustine Washington, Oct. 18, 1777; _ib._,
126-29.

[273] Livingston to Washington, Aug. 12, 1776; _Cor. Rev._: Sparks, i,
275.

[274] Lee to Washington, Nov. 12, 1776; _ib._, 305.

[275] Sullivan to Washington, March 7, 1777; _ib._, 353-54.

[276] Schuyler to Washington, Sept. 9. 1776; _ib._, 287.

[277] Smith to McHenry, Dec. 10, 1778; Steiner, 21.

[278] Chastellux, 44; and see Moore's _Diary_, i, 399-400; and _infra_,
chap. IV.

[279] Washington to Livingston, Dec. 31, 1777; _Writings_: Ford, vi,
272.

[280] Washington to President of Congress, Dec. 23, 1777; _ib._, 260;
and see _ib._, 267.

[281] _Pa. Mag. Hist. and Biog._, 1890-91 (2d Series), vi, 79. Most
faces among the patriot troops were pitted with this plague. Washington
was deeply pockmarked. He had the smallpox in the Barbadoes when he was
nineteen years old. (Sparks, 15.)

[282] Weedon, Jan. 6, 1778, 183.

[283] Hatch, 135; and Kapp, 109.

[284] _Proc._, Mass. Hist. Soc. (2d Series), vi, 93.

[285] _Ib._ Entries of desertions and savage punishment are frequent in
Wild's _Diary_; see p. 135 as an example. Also see Moore's _Diary_, i,
405.

[286] Weedon, 14.

[287] _Ib._, Sept. 3, 1777, 30.

[288] _Ib._, Sept. 15, 1777, 52. And see Sept. 6, p. 36, where officers
as well as privates are ordered "instantly Shot" if they are "so far
lost to all Shame as basely to quit their posts without orders, or shall
skulk from Danger or offer to retreat before orders."

[289] Livingston to Webb, May 28, 1781; _Writings_: Ford, ix, footnote
to 267.

[290] One reason for the chaotic state of the army was the lack of
trained officers and the ignorance of the majority of common soldiers in
regard to the simplest elements of drill or discipline. Many of the
bearers of commissions knew little more than the men; and of such
untrained officers there was an overabundance. (Hatch, 13-15.) To Baron
von Steuben's training of privates as well as officers is due the chief
credit for remedying this all but fatal defect. (Kapp, 126-35; also
_infra_, chap. IV.)

[291] For statement of conditions in the American army throughout the
war see Hatch; also, Bolton.

[292] The States were childishly jealous of one another. Their different
laws on the subject of rank alone caused unbelievable confusion. (Hatch,
13-16. And see Watson, 64, for local feeling, and inefficiency caused by
the organization of the army into State lines.)

[293] Hatch says that Connecticut provided most bountifully for her men.
(Hatch, 87.) But Chastellux found the Pennsylvania line the best
equipped; each Pennsylvania regiment had even a band of music.
(Chastellux, 65.)

[294] "The only garment they possess is a blanket elegantly twined about
them. You may judge, sir, how much this apparel graces their appearance
in parade." (Inspector Fleury to Von Steuben, May 13, 1778; as quoted in
Hatch, 87.)

[295] Diary of Joseph Clark; _Proceedings_, N.J. Hist. Soc. (1st
Series), vii, 104. The States would give no revenue to the general
Government and the officers thought the country would go to pieces.
(Hatch, 154.)

[296] Heitman, 285.

[297] Binney, in Dillon, iii, 284.

[298] Washington to Committee of Congress, July 19, 1777; _Writings_:
Ford, v, 495.

[299] Washington to President of Congress, Aug. 23, 1777; _Writings_:
Ford, vi, 50; also see Marshall (1st ed.), iii, 126.

[300] Marshall (1st ed.), iii, 126.

[301] _Ib._, 127.

[302] On this subject see Waldo's poem, _Hist. Mag._, vii, 274; and
Clark's Diary, _Proc._, N.J. Hist. Soc., vii, 102.

[303] Weedon, Aug. 23, 1777, 19.

[304] Marshall (1st ed.), iii, 127.

[305] _Ib._, 128; and see Trevelyan, iv, 226.

[306] Marshall (1st ed.), iii, 127-29; _ib._ (2d ed.), i, 154-56;
Washington to President of Congress, Sept. 3, 1777; _Writings_: Ford,
vi, 64-65.

[307] Story, in Dillon, iii, 335.

[308] Washington to President of Congress, Sept 11, 1777; _Writings_:
Ford, vi, 69.

[309] Marshall (1st ed.), iii, 131; _ib._ (2d ed.), i, 156. Colonel
Harrison, Washington's Secretary, reported immediately to the President
of Congress that Maxwell's men believed that they killed or wounded "at
least three hundred" of the British. (Harrison to President of Congress,
Sept. 11, 1777; _Writings_: Ford, vi, footnote to 68.)

[310] Marshall, i, 156. The fact that Marshall places himself in this
detachment, which was a part of Maxwell's light infantry, together with
his presence at Iron Hill, fixes his position in the battle of the
Brandywine and in the movements that immediately followed. It is
reasonably certain that he was under Maxwell until just before the
battle of Germantown. Of this skirmish Washington's optimistic and
excited Secretary wrote on the spot, that Maxwell's men killed thirty
men and one captain "left dead on the spot." (Harrison to the President
of Congress, Sept. 11, 1777; _Writings_: Ford, vi, footnote to 68.)

[311] Thomas Marshall was promoted to be lieutenant-colonel Aug. 13,
1776; and colonel Feb. 21, 1777. (Heitman, 285.)

[312] Trevelyan, iv, 230.

[313] Marshall, i, footnote to 158.

[314] _Ib._ Colonel Thomas Marshall's cool-headed and heroic conduct at
this battle, which brought out in high lights his fine record as an
officer, caused the Virginia House of Delegates to elect him colonel of
the State Regiment of Artillery raised by that Commonwealth three months
later. The vote is significant; for, although there were three
candidates, each a man of merit, and although Thomas Marshall himself
was not an aspirant for the place, and, indeed, was at Valley Forge when
the election occurred, twice as many votes were cast for him as for all
the other candidates put together. Four men were balloted for, Thomas
Marshall receiving seventy-five votes and the other three candidates all
together but thirty-six votes. (Journal, H.B. (Nov. 5, 1777), 27.)

[315] Marshall, i, 156; and Trevelyan, iv, 230-31. Washington reported
that Wayne and Maxwell's men retreated only "after a severe conflict."
(Washington to President of Congress, Sept. 11, 1777; _Writings_: Ford,
vi, 69.)

[316] Trevelyan, iv, 232.

[317] Marshall, i, 157-58.

[318] _Ib._; and see Irving, iii, 200-09.

[319] Marshall, i, 158-59.

[320] Four years afterward Chastellux found that "most of the trees bear
the mark of bullets or cannon shot." (Chastellux, 118.)

[321] Washington to President of Congress, Sept. 11, 1777; _Writings_:
Ford, vi, 70.

[322] Marshall (1st ed.), iii, 141, and see Washington to President of
Congress, Sept. 23, 1777; _Writings_: Ford, vi, 81.

[323] Marshall, i, 160.

[324] Marshall, i, 160. When their enlistments expired, the soldiers
took the Government's muskets and bayonets home with them. Thus
thousands of muskets and bayonets continually disappeared. (See Kapp,
117.)

[325] Marshall, i, 160-61.

[326] _Ib._

[327] Washington to President of Congress, Sept. 23, 1777; _Writings_:
Ford, vi, 81-82.

[328] This is an inference, but a fair one. Maxwell was under Wayne; and
Marshall was one of Maxwell's light infantry of picked men. (_Supra._)

[329] Marshall, i, 161. "The British accounts represent the American
loss to have been much larger. It probably amounted to at least three
hundred men." (_Ib._, footnote.)

[330] _Ib._, and see _Pa. Mag. Hist. and Biog._, i, 305.

[331] Marshall repeatedly expresses this thought in his entire account
of the war.

[332] Washington to President of Congress, Sept. 23, 1777; _Writings_:
Ford, vi, 80.

[333] Marshall, i, 162.

[334] _Ib._

[335] Washington to President of Congress, Sept. 23, 1777; _Writings_:
Ford, vi, 82.

[336] _Works_: Adams, ii, 437.

[337] _Ib._

[338] _Pa. Mag. Hist. and Biog._, xvi, 197 _et seq._

[339] American officer's description of the battle. (_Ib._, xi, 330.)

[340] Marshall, i, 168.

[341] _Ib._, 168-69.

[342] From an American officer's description, in _Pa. Mag. Hist. and
Biog._, xi, 330.

[343] _Ib._, 331-32.

[344] _Ib._

[345] "The rebels carried off a large number of their wounded as we
could see by the blood on the roads, on which we followed them so far
[nine miles]." (British officer's account of battle; _Pa. Mag. Hist. and
Biog._, xvi, 197 _et seq._)

[346] Marshall, i, 170-71.

[347] _Ib._, 181.

[348] _Ib._, 181-82.

[349] Marshall (1st ed.), iii, 287. Marshall omits this sentence in his
second edition. But his revised account is severe enough.

[350] The Reverend Jacob Duché, to Washington, Oct. 8, 1777; _Cor.
Rev._: Sparks, i, 448-58.

[351] Washington to President of Congress, Dec. 10, 1777; _Writings_:
Ford, vi, 238-39.

[352] Clark's Diary, _Proc._, N.J. Hist. Soc. (1st Series), vii, 102-03.
"It seems that the enemy had waited all this time before our lines to
decoy us from the heights we possessed." (_Ib._)

[353] Marshall, i, 184.

[354] Marshall, i, 184.




CHAPTER IV

VALLEY FORGE AND AFTER

    Unless some great and capital change suddenly takes place ... this
    army must inevitably starve, dissolve, or disperse. (Washington,
    Dec. 23, 1777.)

    John Marshall was the best tempered man I ever knew. Nothing
    discouraged, nothing disturbed him. (Lieutenant Slaughter, of
    Marshall at Valley Forge.)


Gaunt and bitter swept down the winter of 1777. But the season brought
no lean months to the soldiers of King George, no aloes to the Royal
officers in fat and snug Philadelphia.[355] It was a period of rest and
safety for the red-coated privates in the city, where, during the
preceding year, Liberty Bell had sounded its clamorous defiance; a time
of revelry and merry-making for the officers of the Crown. Gay days
chased nights still gayer, and weeks of social frolic made the winter
pass like the scenes of a warm and glowing play.

For those who bore the King's commission there were balls at the City
Tavern, plays at the South-Street Theater; and many a charming
flirtation made lively the passing months for the ladies of the
Capital, as well as for lieutenant and captain, major and colonel, of
the invaders' army. And after the social festivities, there were, for
the officers, carousals at the "Bunch of Grapes" and all night dinners
at the "Indian Queen."[356]

"You can have no idea," wrote beautiful Rebecca Franks,--herself a keen
Tory,--to the wife of a patriot, "you can have no idea of the life of
continued amusement I live in. I can scarce have a moment to myself. I
spent Tuesday evening at Sir William Howe's, where we had a concert and
dance.... Oh, how I wished Mr. Paca would let you come in for a week or
two!... You'd have an opportunity of raking as much as you choose at
Plays, Balls, Concerts, and Assemblies. I have been but three evenings
alone since we moved to town."[357]

"My wife writes me," records a Tory who was without and whose wife
was within the Quaker City's gates of felicity, "that everything is
gay and happy [in Philadelphia] and it is like to prove a frolicking
winter."[358] Loyal to the colors of pleasure, society waged a
triumphant campaign of brilliant amusement. The materials were
there of wit and loveliness, of charm and manners. Such women there
were as Peggy Chew and Rebecca Franks, Williamina Bond and Margaret
Shippen--afterwards the wife of Benedict Arnold and the probable cause
of his fall;[359] such men as Banastre Tarleton of the Dragoons,
twenty-three years old, handsome and accomplished; brilliant Richard
Fitzpatrick of the Guards; Captain John André, whose graces charmed all
hearts.[360] So lightly went the days and merrily the nights under the
British flag in Philadelphia during the winter of 1777-78.

For the common soldiers there were the race-course and the cock-pit,
warm quarters for their abodes, and the fatness of the land for their
eating. Beef in abundance, more cheese than could be used, wine enough
and to spare, provisions of every kind, filled pantry and cellar. For
miles around the farmers brought in supplies. The women came by night
across fields and through woods with eggs, butter, vegetables, turkeys,
chickens, and fresh meat.[361] For most of the farmers of English
descent in that section hated the war and were actively, though in
furtive manner, Tory. They not only supplied the British larder, but
gave news of the condition and movements of the Americans.[362]

Not twenty miles away from these scenes of British plenty and content,
of cheer and jollity, of wassail and song, rose the bleak hills and
black ravines of Valley Forge, where Washington's army had crawled some
weeks after Germantown. On the Schuylkill heights and valleys, the
desperate Americans made an encampment which, says Trevelyan, "bids fair
to be the most celebrated in the world's history."[363] The hills were
wooded and the freezing soldiers were told off in parties of twelve to
build huts in which to winter. It was more than a month before all these
rude habitations were erected.[364] While the huts were being built the
naked or scarcely clad[365] soldiers had to find what shelter they
could. Some slept in tents, but most of them lay down beneath the
trees.[366] For want of blankets, hundreds, had "to sit up all night by
fires."[367] After Germantown Washington's men had little to eat at any
time. On December 2, "the last ration had been delivered and
consumed."[368] Through treachery, cattle meant for the famishing
patriots were driven into the already over-supplied Philadelphia.[369]

The commissariat failed miserably, perhaps dishonestly, to relieve
the desperate want. Two days before Christmas there was "not a
single hoof of any kind to slaughter, and not more than twenty-five
barrels of flour!"[370] Men died by the score from starvation.[371]
Most of the time "fire cake" made of dirty, soggy dough,
warmed over smoky fires, and washed down with polluted water
was the only sustenance. Sometimes, testifies Marshall himself,
soldiers and officers "were absolutely without food."[372]
On the way to Valley Forge, Surgeon Waldo writes: "I'm Sick--eat
nothing--No Whiskey--No Baggage--Lord,--Lord,--Lord."[373] Of the camp
itself and of the condition of the men, he chronicles: "Poor food--hard
lodging--Cold Weather--fatigue--Nasty Cloaths--nasty Cookery--Vomit half
my time--Smoak'd out of my senses--the Devil's in it--I can't Endure
it--Why are we sent here to starve and freeze--What sweet Felicities
have I left at home;--A charming Wife--pretty Children--Good Beds--good
food--good Cookery--all agreeable--all harmonious. Here, all
Confusion--Smoke--Cold,--hunger & filthyness--A pox on my bad luck. Here
comes a bowl of beef soup,--full of burnt leaves and dirt, sickish
enough to make a hector spue--away with it, Boys--I'll live like the
Chameleon upon Air."[374]

While in overfed and well-heated Philadelphia officers and privates took
the morning air to clear the brain from the night's pleasures, John
Marshall and his comrades at Valley Forge thus greeted one another:
"Good morning Brother Soldier (says one to another) how are you?--All
wet, I thank'e, hope you are so--(says the other)."[375] Still, these
empty, shrunken men managed to squeeze some fun out of it. When reveille
sounded, the hoot of an owl would come from a hut door, to be answered
by like hoots and the cawing of crows; but made articulate enough to
carry in this guise the cry of "'No meat!--No meat!' The distant vales
Echo'd back the melancholy sound--'No Meat!--No Meat!'... What have you
for our Dinners, Boys? [one man would cry to another] 'Nothing but Fire
Cake and Water, Sir.' At night--'Gentlemen, the Supper is ready.' What
is your Supper, Lads? 'Fire Cake & Water, Sir.'"

Just before Christmas Surgeon Waldo writes: "Lay excessive Cold &
uncomfortable last Night--my eyes are started out from their Orbits like
a Rabbit's eyes, occasion'd by a great Cold--and Smoke. What have you
got for Breakfast, Lads? 'Fire Cake and Water, Sir.' The Lord send that
our Commissary of Purchases may live on Fire Cake & Water till their
glutted Gutts are turned to Pasteboard."

He admonishes: "Ye who Eat Pumpkin Pie and Roast Turkies--and yet Curse
fortune for using you ill--Curse her no more--least she reduce you ...
to a bit of Fire Cake & a Draught of Cold Water, & in Cold
Weather."[376]

Heart-breaking and pitiful was the aspect of these soldiers of liberty.
"There comes a Soldier--His bare feet are seen thro' his worn out
Shoes--his legs nearly naked from the tatter'd remains of an only pair
of stockings--his Breeches not sufficient to cover his Nakedness--his
Shirt hanging in Strings--his hair dishevell'd--his face meagre--his
whole appearance pictures a person foresaken & discouraged. He comes,
and crys with an air of wretchedness & despair--I am Sick--my feet
lame--my legs are sore--my body cover'd with this tormenting Itch--my
Cloaths are worn out--my Constitution is broken--my former Activity is
exhausted by fatigue--hunger & Cold!--I fail fast I shall soon be no
more! And all the reward I shall get will be--'Poor Will is dead.'"[377]

On the day after Christmas the soldiers waded through snow halfway to
their knees. Soon it was red from their bleeding feet.[378] The cold
stung like a whip. The huts were like "dungeons and ... full as
noisome."[379] Tar, pitch, and powder had to be burned in them to drive
away the awful stench.[380] The horses "died by hundreds every week";
the soldiers, staggering with weakness as they were, hitched themselves
to the wagons and did the necessary hauling.[381] If a portion of earth
was warmed by the fires or by their trampling feet, it froze again into
ridges which cut like knives. Often some of the few blankets in the army
were torn into strips and wrapped around the naked feet of the soldiers
only to be rent into shreds by the sharp ice under foot.[382] Sick men
lay in filthy hovels covered only by their rags, dying and dead comrades
crowded by their sides.[383]

As Christmas approached, even Washington became so disheartened that he
feared that "this army must dissolve;"[384] and the next day he again
warned Congress that, unless the Commissary were quickly improved, "this
army must inevitably ... starve, dissolve, or disperse."[385]

Early in 1778 General Varnum wrote General Greene that "The situation of
the Camp is such that in all human probability the Army must soon
dissolve. Our desertions are astonishingly great."[386] "The army must
dissolve!" "The army must dissolve!"--the repeated cry comes to us like
the chant of a saga of doom.

Had the British attacked resolutely, the Americans would have been
shattered beyond hope of recovery.[387] On February 1, 1778, only five
thousand and twelve men out of a total of more than seventeen thousand
were capable of any kind of service: four thousand were unfit for duty
because of nakedness.[388] The patriot prisoners within the British
lines were in even worse case, if we credit but half the accounts then
current. "Our brethren," records Surgeon Waldo in his diary, "who are
unfortunately Prisoners in Philadelphia, meet with the most savage &
inhumane treatments--that Barbarians are Capable of inflicting.... One
of these poor unhappy men--drove to the last extreem by the rage of
hunger--eat his own fingers up to the first joint from the hand, before
he died. Others eat the Clay--the Lime--the Stones--of the Prison Walls.
Several who died in the Yard had pieces of Bark, Wood,--Clay & Stones in
their mouths--which the ravings of hunger had caused them to take in the
last Agonies of Life."[389]

The Moravians in Bethlehem, some miles away from Valley Forge, were the
only refuge of the stricken patriots. From the first these Christian
socialists were the Good Samaritans of that ghastly winter. This little
colony of Germans had been overrun with sick and wounded American
soldiers. Valley Forge poured upon it a Niagara of starvation, disease,
and death. One building, scarcely large enough for two hundred and fifty
beds, was packed with nearly a thousand sick and dying men. Dysentery
reduced burly strength to trembling weakness. A peculiar disease rotted
blood and bones. Many died on the same foul pallet before it could be
changed. The beds were "heaps of polluted litter." Of forty of John
Marshall's comrades from a Virginia regiment, which was the "pride of
the Old Dominion," only three came out alive.[390] "A violent putrid
fever," testifies Marshall, "swept off much greater numbers than all the
diseases of the camp."[391]

Need, was there not, at Valley Forge for men of resolve so firm and
disposition so sunny that they would not yield to the gloom of these
indescribable months? Need, was there not, among these men, for spirits
so bright and high that they could penetrate even the death-stricken
depression of this fetid camp with the glow of optimism and of hope?

Such characters were there, we find, and of these the most shining of
all was John Marshall of the Virginia line.[392] He was a very torch of
warmth and encouragement, it appears; for in the journals and diaries
left by those who lived through Valley Forge, the name of John Marshall
is singled out as conspicuous for these comforting qualities.

"Although," writes Lieutenant Philip Slaughter, who, with the "two
Porterfields and Johnson," was the messmate of John Marshall, "they
were reduced sometimes to a single shirt, having to wrap themselves in a
blanket when that was washed"[393] and "the snow was knee-deep all the
winter and stained with blood from the naked feet of the soldiers,"[394]
yet "nothing discouraged, nothing disturbed" John Marshall. "If he had
only bread to eat," records his fellow officer, "it was just as well; if
only meat it made no difference. If any of the officers murmured at
their deprivations, he would shame them by good-natured raillery, or
encourage them by his own exuberance of spirits.

"He was an excellent companion, and idolized by the soldiers and his
brother officers, whose gloomy hours were enlivened by his inexhaustible
fund of anecdote.... John Marshall was the best tempered man I ever
knew,"[395] testifies his comrade and messmate.

So, starving, freezing, half blind with smoke, thinly clad and almost
shoeless, John Marshall went through the century-long weeks of Valley
Forge, poking fun wherever he found despondency, his drollery bringing
laughter to cold-purpled lips, and, his light-hearted heroism shaming
into erectness the bent backs of those from whom hope had fled. At one
time it would be this prank; another time it would be a different
expedient for diversion. By some miracle he got hold of a pair of silk
stockings and at midnight made a great commotion because the leaves he
had gathered to sleep on had caught fire and burned a hole in his
grotesque finery.[396]

High spirits undismayed, intelligence shining like a lamp, common sense
true as the surveyor's level--these were the qualities which at the
famine camp at Valley Forge singled the boyish Virginia officer out of
all that company of gloom. Just before the army went into winter
quarters Captain-Lieutenant Marshall was appointed "Deputy Judge
Advocate in the Army of the United States,"[397] and at the same time,
by the same order, James Monroe was appointed aide-de-camp to Lord
Stirling, one of Washington's generals.[398]

Such was the confidence of his fellow officers and of the soldiers
themselves in Marshall's judgment and fairness that they would come to
him with their disputes and abide by his decision; and these tasks, it
seems, the young Solomon took quite seriously. He heard both sides with
utmost patience, and, having taken plenty of time to think it over,
rendered his decision, giving the reasons therefor in writing.[399] So
just after he had turned his twenty-second year, we find John Marshall
already showing those qualities which so distinguished him in after
life. Valley Forge was a better training for Marshall's peculiar
abilities than Oxford or Cambridge could have been.

His superiority was apparent, even to casual observers, notwithstanding
his merriment and waggishness. One of a party visiting Valley Forge said
of the stripling Virginia officer: "By his appearance then we supposed
him about twenty-two or twenty-three years of age. Even so early in
life ... he appeared to us _primus inter pares_, for amidst the many
commissioned officers he was discriminated for superior intelligence.
Our informant, Colonel Ball, of another regiment in the same line,[400]
represented him as a young man, not only brave, but signally
intelligent."[401]

Marshall's good humor withstood not only the horrors of that terrible
winter, but also Washington's iron military rule. The Virginia
lieutenant saw men beaten with a hundred stripes for attempting to
desert. Once a woman was given a hundred lashes and drummed out of the
army. A lieutenant was dismissed from the service in disgrace for
sleeping and eating with privates, and for buying a pair of shoes from a
soldier.[402] Bitter penalties were inflicted on large numbers of
civilians for trying to take flour, cattle, and other provisions to the
British in Philadelphia;[403] a commissary was "mounted on a horse, back
foremost, without a Saddle, his Coat turn'd wrong side out his hands
tied behind him & drummed out of the Army (Never more to return) by all
the Drums in the Division."[404]

What held the patriot forces together at this time? George Washington,
and he alone.[405] Had he died, or had he been seriously disabled, the
Revolution would have ended. Had typhoid fever seized Washington for a
month, had any of those diseases, with which the army was plagued,
confined him, the patriot standard would have fallen forever. Washington
was the soul of the American cause. Washington was the Government.
Washington was the Revolution. The wise and learned of every land agree
on this. Professor Channing sums it all up when he declares: "Of all men
in history, not one so answers our expectations as Washington. Into
whatever part of his life the historian puts his probe, the result is
always satisfactory."[406]

Yet intrigue and calumny sought his ruin. From Burgoyne's surrender on
through the darkest days of Valley Forge, the Conway cabal shot its
filaments through Congress, society, and even fastened upon the army
itself. Gates was its figurehead, Conway its brain, Wilkinson its tool,
Rush its amanuensis, and certain members of Congress its accessories
before the fact. The good sense and devotion of Patrick Henry, who
promptly sent Washington the anonymous letter which Rush wrote to the
Virginia Governor,[407] prevented that shameful plot from driving
Washington out of the service of his country.

Washington had led his army to defeat after defeat while Gates had
gained a glorious victory; Gates was the man for the hour--down, then,
with the incompetent Virginian, said the conspirators. The Pennsylvania
Legislature, wroth that Howe's army had not been beaten, but allowed to
occupy the comfortable Capital of the State, remonstrated to Congress.
That body, itself, was full of dissatisfaction with the
Commander-in-Chief. Why would he not oust the British from Philadelphia?
Why had he allowed Howe to escape when that general marched out to meet
him? As the first step toward Washington's downfall, Congress created a
new Board of War, with Gates as President; Conway was made
Inspector-General.[408]

The conspirators and those whom their gossip could dupe lied about
Washington's motives. His abilities, it was said, were less than
ordinary; and his private conduct, went the stealthy whisper, was so bad
as to prove the hypocrisy of his deportment.[409] Nor were Washington's
generals spared. Greene was a sycophant, said these assassins of
character; Sullivan a braggart; Stirling "a lazy, ignorant drunkard."
These poisoners of reputation declared that General Knox and Alexander
Hamilton were "paltry satellites" of Washington and flatterers of his
vanity.[410] So cunning, subtle, and persistent were these sappers and
miners of reputation that even the timely action of Patrick Henry in
sending Washington Rush's unsigned attack might not have prevented the
great American's overthrow; for envy of Washington's strength, suspicion
of his motives, distrust of his abilities, had made some impression
even on men like John Adams.[411]

The great American bore himself with dignity, going hardly further than
to let his enemies know that he was aware of their machinations.[412] At
last, however, he lashed out at Congress. Let that body look to the
provisioning of the army if it expected the soldiers to fight. The
troops had no food, no clothing. The Quartermaster-General had not been
heard from for five months. Did his critics think "the soldiers were
made of stocks and stones?" Did they think an active winter campaign
over three States with starving naked troops "so easy and practicable a
business? I can assure those gentlemen," writes Washington, "that it is
a much easier and less distressing thing to draw remonstrances in a
comfortable room by a good fireside, than to occupy a cold, bleak hill,
and sleep under frost and snow, without clothes or blankets.... I have
exposed myself to detraction and calumny" because "I am obliged to
conceal the true state of the army from public view.... No day nor
scarce an hour passes without" an officer tendering his
resignation.[413]

Washington was saved finally by the instinctive faith which that part of
the common people who still supported the Revolution had in their great
leader, and by his soldiers' stanch devotion, which defeat after defeat,
retreat hard upon the heels of preceding retreat, hunger and nakedness,
wounds and sickness could not shake.

"See the poor Soldier," wrote Surgeon Waldo at Valley Forge. "He labours
thro' the Mud & Cold with a Song in his mouth, extolling War &
Washington."[414]

Congress soon became insignificant in numbers, only ten or twelve
members attending, and these doing business or idling as suited their
whim.[415] About the only thing they did was to demand that Washington
strike Philadelphia and restore the members of this mimetic government
to their soft, warm nests. Higher and yet more lofty in the esteem of
his officers and men rose their general. Especially was this true of
John Marshall for reasons already given, which ran back into his
childhood.

In vain Washington implored the various States to strengthen Congress by
sending their best men to this central body. Such able men as had not
taken up arms for their country refused to serve in Congress. Nearly
every such man "was absorbed in provincial politics, to the exclusion of
any keen and intelligent interest in the central Government of his
nation."[416]

Amidst the falling snow at Valley Forge, Washington thus appealed to
Colonel Harrison in Virginia: "America never stood in more eminent need
of the wise, patriotic, and spirited exertions of her Sons than at this
period.... The States, separately, are too much engaged in their local
concerns.... The States ... have very inadequate ideas of the present
danger."[417] The letter could not be sent from that encampment of ice
and death for nearly two weeks; and the harassed commander added a
postscript of passionate appeal declaring that "our affairs are in a
more distressed, ruinous, and deplorable condition than they have been
in since the commencement of the War."[418]

"You are beseeched most earnestly, my dear Col^o Harrison," pleaded
Washington, "to exert yourself in endeavoring to rescue your Country
by ... sending your best and ablest Men to Congress--these characters
must not slumber nor sleep at home in such times of pressing
danger--they must not content themselves in the enjoyment of places of
honor or profit in their Country [Virginia][419] while the common
interests of America are mouldering and sinking into irretrievable ...
ruin, in which theirs also must ultimately be involved."[420]

With such men, Washington asserted, "party disputes and personal
quarrels are the great business of the day, whilst the momentous
concerns of an empire [America][421] ... are but secondary
considerations." Therefore, writes Washington, in angry exasperation,
"in the present situation of things, I cannot help asking--Where is
Mason--Wythe--Jefferson?"[422]

"Where is Jefferson?" wrote Washington in America's darkest hour, when
the army was hardly more than an array of ragged and shoeless skeletons,
and when Congress was so weak in numbers and ability that it had become
a thing of contempt. Is it not probable that the same question was asked
by the shivering soldiers and officers of the Continental army, as they
sat about the smoking fires of their noisome huts sinking their
chattering teeth into their "Fire Cake" and swallowing their brackish
water? If Washington would so write, is it not likely that the men would
so talk? For was not Jefferson the penman who had inscribed the
Declaration of Independence, for which they were fighting, suffering,
dying?

Among the Virginians especially there must have been grave questionings.
Just as to John Marshall's army experience the roots of the greatest of
his constitutional opinions may clearly be traced, so the beginnings of
his personal estimate of Thomas Jefferson may be as plainly found in
their relative situations and conduct during the same period.

John Marshall was only a few days beyond his twentieth year when, with
his Culpeper Minute Men, he fought the British at Great Bridge. Thomas
Jefferson at that time was thirty-two years old; but the prospect of
battle on Virginia's soil did not attract him. At Valley Forge, John
Marshall had just entered on his twenty-third year, and Thomas
Jefferson, thirty-five years old, was neither in the army nor in
Congress. Marshall had no fortune; Jefferson was rich.[423]

So, therefore, when as reserved a man as Washington had finally and with
great effort trained himself to be, asked in writing, "Where is
Jefferson?" is it not a reasonable inference that the Virginia officers
in the familiar talk of comrades, spoke of Jefferson in terms less mild?

And, indeed, where was Thomas Jefferson? After serving in Congress, he
refused point-blank to serve there again and resigned the seat to which
he had been reëlected. "The situation of my domestic affairs renders it
indispensably necessary that I should solicit the substitution of some
other person," was the only excuse Jefferson then gave.[424] He wanted
to go to the State Legislature instead, and to the State Legislature he
went. His "domestic affairs" did not prevent that. In his Autobiography,
written forty-four years afterward (1821), Jefferson declares that he
resigned from Congress and went to the State Legislature because "our
[State] legislation under the regal government had many very vicious
points which urgently required reformation and I thought I could be of
more use in forwarding that work."[425]

So while the British revels were going on in Philadelphia and the
horrors of Valley Forge appeared to be bringing an everlasting night
upon American liberty, and when the desperation of the patriot cause
wrung from the exasperated Washington his appeal that Virginia's ablest
men should strengthen the feeble and tottering Congress, Jefferson was
in the State Legislature. But he was not there merely enjoying office
and exclusively engaged in party politics as Washington more than
intimates. He was starting such vital reforms as the abolition of
entails, the revision of the criminal code, the establishment of a free
school system, the laying of the legal foundations of religious
freedom.[426]

In short, Jefferson was sowing the seeds of liberalism in Virginia. But
it is only human nature that breasts bearing the storm of war should not
have thrilled in admiration of this civil husbandry. It was but natural
that the benumbed men at Valley Forge should think the season early for
the planting of State reforms, however needful, when the very ground of
American independence was cold and still freezing with patriot
misfortune and British success.

Virginia's Legislature might pass all the so-called laws it liked; the
triumph of the British arms would wipe every one of them from the
statute books. How futile, until America was free, must all this
bill-drafting and reforming have appeared to the hard-driven men on the
Schuylkill's Arctic hills! "Here are we," we can hear them say, "in
worse case than most armies have been in the whole history of the world;
here are we at Valley Forge offering our lives, wrecking our health,
losing the little store we have saved up, and doing it gladly for the
common American cause; and there, in safe and comfortable Williamsburg
or at sumptuous Monticello, is the man who wrote our Declaration of
Independence, never venturing within the sound of cannon or smell of
powder and even refusing to go to Congress."

The world knows now that Jefferson was not to be blamed. He was not a
man of arms, dreaded the duties of a soldier, had no stomach for
physical combat.[427] He was a philosopher, not a warrior. He loved to
write theories into laws that correct civil abuses by wholesale, and to
promote the common good by sweeping statutes. Also, he was a born
politician, skillful and adroit in party management above any man in our
history.[428]

But as a man of action in rough weather, as an executive in stern times,
he himself admitted his deficiency.[429] So we know to-day and better
understand this great reformer, whose devotion to human rights has made
men tolerant of his grave personal shortcomings. Nothing of this,
however, could have occurred to the starving, shivering patriot soldiers
in their awful plight at Valley Forge. Winning the war was their only
thought, as always is the soldier's way.

Early in April, 1778, when, but for the victory at Saratoga, the
Revolution seemed well-nigh hopeless to all but the stoutest hearts, an
old and valued English friend begged Washington to give up the
apparently doomed American cause. The Reverend Andrew Burnaby appealed
to him for American and British reunion. "Must the parent and the child
be forever at variance? And can either of them be happy, independent of
the other?" The interests of the two countries are the same; "united
they will constitute the fairest and happiest state in the world;
divided they will be quite the reverse. It is not even possible that
America should be happy, unconnected with Great Britain." In case
America should win, the States will fall asunder from civil discord. The
French, "that false and treacherous people," will desert the Americans.
Great Britain and America have "the same interest, the same lineage, the
same language, the same liberty, the same religion, connecting them."
Everybody in England wants reunion; even the Government is anxious to
"rectify ... errors and misunderstandings." It is time to "heal the
wounds on both sides." Washington can achieve this "divine purpose" and
"thereby acquire more glory and confer more real and lasting service,
both to your own country and to mankind in general than ... ever yet
happened to the lot of any one man."[430]

This subtle plea, designed to prepare the way for the British
"Commission of Conciliation," neither flattered nor tempted Washington.
It insulted him. He acted more vigorously than ever; and, soon
afterward, his answer was delivered with cannon and bayonet on the field
of Monmouth.[431]

When the winter had passed, Washington once more appealed to Congress to
cease its bickering and indecision. That body was jealous of the army,
he declared, whereas, said he, "We should all be considered, Congress
and Army, as one people, embarked in one cause, in one interest; acting
on the same principle, and to the same end"--a philosophy which a young
Virginia officer was then absorbing and continued to absorb, until it
became the ruling force in his life.

"No history extant," continues Washington, "can furnish an instance of
an army's suffering such uncommon hardships ... and bearing them with
the same patience and fortitude. To see men without clothes to cover
their nakedness, without blankets to lie on, without shoes, by which
their marches might be traced by the blood from their feet, and almost
as often without provisions as with them, marching through the frost and
snow, and at Christmas taking up their winter quarters within a day's
march of the enemy, without a house or hut to cover them, 'till they
could be built, and submitting to it without a murmur, is proof of
patience and obedience which, in my opinion can scarce be
paralleled."[432]

Further shaming Congress into action, Washington says that "with us ...
the officer ... must break in upon his private fortune for present
support, without a prospect of future relief"; while, with the British,
company commands "are esteemed so honorable and so valuable that they
have sold of late from fifteen to twenty-two hundred pounds sterling
and ... four thousand guineas have been given for a troop of
dragoons."[433]

Finally came the spring of 1778. The spirits of the men rose with the
budding of the trees. Games and sport alternated with drill and policing
of the camp. The officers made matches for quoits, running, and jumping.
Captain-Lieutenant Marshall was the best athlete in his regiment. He
could vault over a pole "laid on the heads of two men as high as
himself." A supply from home had reached him at last, it appears, and in
it were socks. So sometimes Marshall ran races in his stocking feet. In
knitting this foot apparel, his mother had made the heels of white yarn,
which showed as he ran. Thus came his soldier nickname of "Silver
Heels."[434]

As spring advanced, the troops recovered their strength and, finally,
were ready and eager again to meet the enemy. Washington had persuaded
General Greene to accept the vital office of Quartermaster-General; and
food, clothing, and munitions had somewhat relieved the situation.[435]
Baron von Steuben had wrought wonders in the drill and discipline of the
men and in the officers' knowledge of their technical duties.[436] "I
should do injustice if I were to be longer silent with regard to the
merits of the Baron de [von] Steuben" Washington told Congress, in
hearty appreciation of the Prussian general's services.[437]

Another event of immense importance cheered the patriot forces and
raised patriot hopes throughout America. The surrender of Burgoyne had
encouraged the French statesmen to attempt the injury of England by
helping the revolting colonies. On May 6, 1778, the treaty of alliance
with Louis XVI was laid before Congress.[438] The miseries of the past
winter were forgotten by the army at Valley Forge in the joy over the
French Monarch's open championship of the American cause and his attack
upon the British.[439] For it meant trained troops, ships of war,
munitions, and money. It meant more--it signified, in the end, war by
France upon England.

The hills of Valley Forge were vocal with huzzas and the roar of cannon.
Songs filled the air. The army paraded. Sermons were preached. The
rebound went to heights of enthusiasm equaling the former depths of
despair.[440] Marshall, we may be sure, joined with his characteristic
zest in the patriots' revel of happiness. Washington alone had
misgivings. He feared that, because of the French alliance, Congress and
the States would conclude that "we have nothing more to do" and so
"relapse into a state of supineness and perfect security."[441]
Precisely this occurred.

Soon, however, other inspiriting tidings came--the British, it was said,
were about to quit Philadelphia. The gayety in that city had continued
throughout the winter, and just before the evacuation, reached its
climax in a festival of almost unbelievable opulence and splendor.
Processions of flower-decked boats, choruses, spectacles, and parades
crowded the day; dancing and music came with sunset, and at midnight,
lighted by hundreds of wax candles, twelve hundred people sat down to a
dinner of Oriental luxury served by negroes clad in the rich costumes of
the East "with silver collars and bracelets."[442]

When, on June 18, the Royal forces abandoned the city, the Americans
were quick in pursuit. On June 28, a day of blistering heat, the battle
of Monmouth was fought. That scorching Sunday "was long remembered all
over the United States as the most sultry day which had ever been
endured since mankind learned to read the thermometer."[443]

It must have been very hot indeed, for Marshall himself speaks of "the
intense heat";[444] and he disliked extreme terms. Marshall was one of
the advance guard[445] under Wayne, with Lee in command of the division.
In a previous council of war most of the higher officers were decidedly
against risking the action; but Washington overruled them and ordered
Lee to attack the British force "the moment it should move from its
ground."[446]

The Commander-in-Chief, with the main body of American troops, was to
come to Lee's support. It is unnecessary to go over the details of Lee's
unhappy blunder, his retreat, Washington's Berserker rage and stinging
rebuke on the battlefield in sight and hearing of officer and private,
the turning of the rout into attack, and attack into victory by the
sheer masterfulness of the mighty Virginian. From ten o'clock until
nightfall the conflict raged, the Americans generally successful.

The overpowering sun made the action all but insufferable. Many died
from the effects of the furnace-like heat. The fighting was heavy and
often hand to hand. Throughout the day Washington was the very soul of
battle. His wrath at Lee's retreat unleashed the lion in him. He rode
among the troops inspiring, calming, strengthening, steadying. Perhaps
at no time in his life, except at Braddock's defeat, was his peculiar
combination of cool-headed generalship and hot-blooded love of combat so
manifest in a personal way as on this blazing June day at Monmouth.

"Never," testifies Lafayette, who commanded part of the advance and
fought through the whole battle, "was General Washington greater in war
than in this action. His presence stopped the retreat. His dispositions
fixed the victory. His fine appearance on horseback, his calm courage,
roused by the animation produced by the vexation of the morning, gave
him the air best calculated to excite enthusiasm."[447]

When Washington was preparing the final stroke, darkness fell. The
exhausted Americans, their clothing drenched with sweat, slept on their
arms upon the field of battle, their General-in-Chief himself lying on
the ground among the living, the wounded, and the dead. Somewhere on
that hard-fought ground, Captain-Lieutenant John Marshall stretched
himself by his comrades. Washington was determined to press the attack
at break of day. But at midnight the British stole away so silently that
the Americans did not hear a sound from their retreat.[448] The
Americans lost eight officers and sixty-one privates killed, one
hundred and sixty wounded, and one hundred and thirty missing. The
British left more than two hundred and fifty dead upon the field.[449]

Upon Charles Lee most accounts of the battle of Monmouth have placed the
brand of infamy. But John Marshall did not condemn Lee utterly. There
were, it appears, two sides of the business--the difficulty of the
ground, the mistake made by Scott, a reinforcement of the British rear,
and other incidents.[450] These appealed even to Washington when the
calm of judgment returned to him after the battle was fought and his
blazing wrath had cooled; and had Lee not sent insulting letters to the
Commander-in-Chief, it is probable that no further action would have
been taken.[451]

Marshall had been in the fight from first to last; he had retreated
unwillingly with the other five thousand men whom Lee commanded; he was
a fighting man, always eager for the shock of arms; he cherished a
devotion to Washington which was the ruling attachment of his
life--nevertheless, Marshall felt that more was made of Lee's misconduct
than the original offense deserved. Writing as the chosen biographer of
Washington, Marshall gives both sides of this controversy.[452]

This incident throws light upon Marshall's temperament. Other historians
in their eulogy of Washington, have lashed the memory of Lee naked
through the streets of public scorn. Marshall refuses to join the chorus
of denunciation. Instead, he states the whole case with fairness.[453]

Three days after Monmouth, he was promoted to a full captaincy;[454]
and, as we have seen, he had been made Deputy Judge Advocate at Valley
Forge. Holding these two offices, Marshall continued his military
service.

The alliance with the French King, followed by the American success at
Monmouth, lulled the patriots into an unwarranted feeling of security.
Everybody seemed to think the war was over. Congress became more
lethargic than ever, the States more torpid and indifferent. The British
had seized the two points commanding King's Ferry on the North River,
thus cutting the communication between the small American forces on
opposite sides of the Hudson.[455] To restore this severed connection
was important; and it was essential to arouse once more the declining
interest of the people. Washington resolved to take Stony Point, the
then well-nigh impregnable position dominating King's Ferry from the New
Jersey side.

A body of light infantry was carefully selected from all ranks. It was
the flower of Washington's troops in health, stability, courage, and
discipline. Upon this "_élite_ of the army," says Dawson, "the safety
of the Highlands and, indirectly, that of the cause of America, were
dependent."[456] This corps of picked soldiers was intended for quick
and desperate enterprises of extra hazard. John Marshall was one of
those selected.[457] Their first notable task was to take Stony Point by
assault. Anthony Wayne was placed in command. "I have much at heart,"
Washington told Wayne, in the capture of this position, "the importance
of which ... is too obvious to need explanation."[458]

Yet even to these men on missions of such moment, supplies came tardily
and in scant quantities. Wayne's "men were almost naked."[459]

Finally, on June 15, 1779, the time came for the storming of the fort.
It was washed on three sides by the waters of the Hudson and a marsh
separated it from the solid land on the west. Heavy guns were on the
great hill of rock; lighter batteries were placed on its slope; two rows
of abatis were farther down; and the British ships in the river
commanded almost every point of attack.[460]

A party of Wayne's men was detailed to remove obstructions, capture the
sentries, and, in general, prepare the way for the assault by the first
detachment of the Light Infantry, which was to advance with unloaded
muskets, depending exclusively on the bayonet.[461] The fort was taken
by those assigned to make the initial attempt, Colonel Fleury being the
first to enter the stronghold. Below at the edge of the marsh waited the
major part of Wayne's little force, among whom was the future Chief
Justice of the United States.

If the state of Wayne's nerves is an indication, we know how the young
Virginia captain felt, there in the midnight, holding himself in
readiness for the order to advance. For early in the evening Wayne thus
wrote to his brother-in-law: "This will not reach your eye until the
Writer is no mor^e--the Enclosed papers ... [will] enable [you] to
defend the Character and Support the Honor of the man who ... fell in
defense of his Country.... Attend to the Education of my Little _Son &
Daughter_--I fear that their tender Mother will not Survive this
Stroke."[462] But the British were overcome more easily than anybody had
thought possible,[463] and, though wounded, Wayne survived to give more
displays of his genuine heroism, while Providence spared John Marshall
for a no less gallant and immeasurably greater part in the making of the
American Nation.[464]

But the brilliant exploit went for nothing. The Americans failed to take
Verplanck's Point on the eastern bank of the river and the patriot
forces were still separated. Unable to spare enough men to garrison
Stony Point permanently and since the Ferry remained under the British
guns, Washington moved his army to the Highlands. The British at once
reoccupied the abandoned fort which Wayne's men had just captured.

A detail from the Light Infantry was placed under Major Henry Lee of
Virginia, who was instructed to watch the main forces of the enemy.
Among Lee's flying detachment was Captain John Marshall. For three weeks
this scouting expedition kept moving among the ravines, hills, and
marshes, always in close touch with the British. "At Powles Hook, a
point of land on the west side of the Hudson, immediately opposite the
town of New York, penetrating deep into the river,"[465] the enemy had
erected works and garrisoned them with several hundred men. The British
had made the Hook an island by digging a deep ditch through which the
waters of the river flowed; and otherwise had rendered their position
secure.

The daring Lee resolved to surprise and capture the defending force, and
Washington, making sure of lines of retreat, approved the adventure. All
night of August 18, 1779, Lee's men marched stealthily among the steep
hills, passed the main body of the British army who were sleeping
soundly; and at three o'clock in the morning crossed the ditch, entered
the works, and carried away one hundred and fifty-nine prisoners, losing
in the swift, silent effort only two killed and three wounded.[466] This
audacious feat fired the spirits of the patriot forces and covered the
British with humiliation and chagrin.

Here, except for a small incident in Arnold's invasion of Virginia, John
Marshall's active participation in actual warfare ended. He was sent
home[467] because of the expiration of the term of enlistments of the
regiments in which he had commanded and the excess of officers which
this created.[468] The Revolution dragged along; misfortune and
discouragement continued to beat upon the granite Washington. The
support of Louis XVI was a staff upon which, substantial as it was, the
people of the States leaned too heavily. Their exertions relaxed, as we
have seen; Jefferson, patriot and reformer, but not efficient as an
executive, was Governor of Virginia; and John Marshall waited in vain
for the new command which never appeared.

On December 30, 1780, Jefferson received positive news of Arnold's
invasion.[469] He had been warned by Washington that just this event was
likely to occur;[470] but he had not summoned to the colors a single man
of the militia, probably fifty thousand of whom were available,[471] nor
taken any measures to prepare for it. Not until the hostile vessels
entered Virginia waters to disembark the invading force was General
Nelson sent to watch the enemy and call out the local militia of the
adjacent vicinity; and not until news came that the British were on
their way up the James River did the Governor summon the militia of the
neighboring counties. The Royal soldiers reached Richmond on January 4,
1781, without opposition; there Arnold burned some military factories
and munitions, and returned down the river. John Marshall hastened to
the point of danger, and was one of the small American force that
ambushed the British some distance below Westover, but that scattered in
panic at the first fire of the invaders.[472]

Jefferson's conduct at this time and especially during the subsequent
invasion of the State has given an unhappy and undeserved coloring to
his personal character.[473] It all but led to his impeachment by the
Virginia Legislature;[474] and to this day his biographers are
needlessly explanatory and apologetic in regard to this phase of his
career. These incidents confirmed the unfortunate impressions of
Jefferson which Marshall and nearly all the Virginia officers and
soldiers had formed at Valley Forge. Very few of them afterward changed
their unfavorable opinion.[475]

It was his experience, then, on the march, in camp, and on the
battlefield, that taught John Marshall the primary lesson of the
necessity of efficient government. Also his military life developed his
real temperament, which was essentially conservative. He had gone into
the army, as he himself declared, with "wild and enthusiastic
notions,"[476] unlike those of the true Marshall. It did not occur to
this fighting Virginia youth when, responding to Patrick Henry's call,
he marched southward under the coiled-rattlesnake flag inscribed "Don't
tread on me," that anything was needed except to drive the oppressor
into the sea. A glorious, vague "liberty" would do the rest, thought the
stripling backwoods "shirtman," as indeed almost all of those who
favored the patriot cause seemed to think.[477]

And when in blue and buff, as an officer of the Continental army, he
joined Washington, the boyish Virginia lieutenant was still a frontier
individualist, though of the moderate type. But four years of fighting
and suffering showed him that, without a strong and practical
government, democracy cannot solve its giant problems and orderly
liberty cannot live. The ramshackle Revolutionary establishment was, he
found, no government at all. Hundreds of instances of its incredible
dissensions and criminal inefficiency faced him throughout these four
terrible years; and Marshall has recorded many of them.

Not only did each State do as it pleased, as we have seen, but these
pompous sovereignties actually interfered in direct and fatal fashion
with the Continental army itself. For example, when the soldiers of the
line from one State happened to be in another State, the civil power of
the latter often "attempted to interfere and to discharge them,
notwithstanding the fact that they were not even citizens of that
State."[478] The mutiny of underfed, poorly clothed, unpaid troops, even
in the State lines; the yielding of Congress to their demands, which,
though just in themselves, it was perilous to grant on compulsion;[479]
the discontent of the people caused by the forcible State seizure of
supplies,--a seizure which a strong National Government could not have
surpassed in harshness,[480]--were still other illustrations of the
absolute need of an efficient central power. A few "judicious patriots"
did urge the strengthening of National authority, but, writes Marshall,
they were helpless to "correct that fatal disposition of power [by
States and Congress] which had been made by enthusiasm uninstructed by
experience."[481] Time and again Marshall describes the utter absence of
civil and military correlations and the fearful results he had felt and
witnessed while a Revolutionary officer.

Thus it is that, in his service as a soldier in the War for our
Independence, we find the fountain-head of John Marshall's National
thinking. And every succeeding circumstance of his swift-moving and
dramatic life made plainer and clearer the lesson taught him on red
battlefield and in fetid camp. No one can really understand Marshall's
part in the building of the American Nation without going back to these
sources. For, like all living things, Marshall's constructive opinions
were not made; they grew. They were not the exclusive result of
reasoning; they were the fruit of an intense and vivid human experience
working upon a mind and character naturally cautious, constructive, and
inclined to order and authority.


FOOTNOTES:

[355] It appears that, throughout the Revolution, Pennsylvania's
metropolis was noted for its luxury. An American soldier wrote in 1779:
"Philada. may answer very well for a man with his pockets well lined,
whose pursuit is idleness and dissipation. But to us who are not in the
first predicament, and who are not upon the latter errand, it is
intolerable.... A morning visit, a dinner at 5 o'clock--Tea at 8 or
9--supper and up all night is the round _die in diem_.... We have
advanced as far in luxury in the third year of our Indepeny. as the old
musty Republics of Greece and Rome did in twice as many hundreds."
(Tilghman to McHenry, Jan. 25, 1799; Steiner, 25.)

[356] Trevelyan, iv, 279.

[357] _Ib._, 280.

[358] _Ib._

[359] The influence of Margaret Shippen in causing Arnold's treason is
now questioned by some. (See Avery, vi, 243-49.)

[360] Trevelyan, iv, 281-82.

[361] _Ib._, 278-80.

[362] _Ib._, 268-69; also Marshall, i, 215. The German countrymen,
however, were loyal to the patriot cause. The Moravians at Bethlehem,
though their religion forbade them from bearing arms, in another way
served as effectually as Washington's soldiers. (See Trevelyan, iv,
298-99.)

[363] Trevelyan, iv, 290.

[364] The huts were fourteen by sixteen feet, and twelve soldiers
occupied each hut. (Sparks, 245.)

[365] "The men were literally naked [Feb. 1] some of them in the fullest
extent of the word." (Von Steuben, as quoted in Kapp, 118.)

[366] _Hist. Mag._, v, 170.

[367] Washington to President of Congress, Dec. 23, 1777; _Writings_:
Ford, vi, 260.

[368] Marshall, i, 213.

[369] _Ib._, 215.

[370] Washington to President of Congress, Dec. 23, 1777; _Writings_:
Ford, vi, 258.

[371] "The poor soldiers were half naked, and had been half starved,
having been compelled, for weeks, to subsist on simple flour alone and
this too in a land almost literally flowing with milk and honey."
(Watson's description after visiting the camp, Watson, 63.)

[372] Marshall (1st ed.), iii, 341.

[373] _Hist. Mag._, v, 131.

[374] _Ib._

[375] _Ib._, 132.

[376] _Hist. Mag._, v, 132-33.

[377] _Hist. Mag._, v, 131-32.

[378] Trevelyan, iv, 297.

[379] _Ib._ For putrid condition of the camp in March and April, 1778,
see Weedon, 254-55 and 288-89.

[380] Trevelyan, iv, 298.

[381] _Ib._

[382] Personal narrative; Shreve, _Mag. Amer. Hist._, Sept., 1897, 568.

[383] Trevelyan, iv, 298.

[384] Washington to President of Congress, Dec. 22, 1777; _Writings_:
Ford, vi, 253.

[385] Washington to President of Congress, Dec. 23, 1777; _ib._, 257.

[386] General Varnum to General Greene, Feb. 12, 1778, Washington MSS.,
Lib. Cong., no. 21. No wonder the desertions were so great. It was not
only starvation and death but the hunger-crazed soldiers "had daily
temptations thrown out to them of the most alluring nature," by the
British and Loyalists. (Chastellux, translator's note to 51.)

[387] Marshall, i, 227.

[388] _Ib._

[389] _Hist. Mag._, v, 132. This is, probably, an exaggeration. The
British were extremely harsh, however, as is proved by the undenied
testimony of eye-witnesses and admittedly authentic documentary
evidence. For their treatment of American prisoners see Dandridge:
_American Prisoners of the Revolution_, a trustworthy compilation of
sources. For other outrages see Clark's Diary, _Proc._, N.J. Hist. Soc.,
vii, 96; Moore's _Diary_, ii, 183. For the Griswold affair see Niles:
_Principles and Acts of the Revolution_, 143-44. For transportation of
captured Americans to Africa and Asia see Franklin's letter to Lord
Stormont, April 2, 1777; Franklin's _Writings_: Smyth, vii, 36-38; also
Moore's _Diary_, i, 476. For the murder of Jenny M'Crea see Marshall, i,
200, note 9, Appendix, 25; and Moore's _Diary_, i, 476; see also Miner:
_History of Wyoming_, 222-36; and British officer's letter to Countess
of Ossory, Sept. 1, 1777; _Pa. Mag. Hist. and Biog._, i, footnote to
289; and Jefferson to Governor of Detroit, July 22, 1779; _Cal. Va. St.
Prs._, i, 321. For general statement see Marshall (1st ed.), iii, 59.
These are but a few of the many similar sources that might be cited.

[390] Trevelyan, iv, 299.

[391] Marshall, i, 227.

[392] John Marshall's father was also at Valley Forge during the first
weeks of the encampment and was often Field Officer of the Day.
(Weedon.) About the middle of January he left for Virginia to take
command of the newly raised State Artillery Regiment. (Memorial of
Thomas Marshall; _supra._) John Marshall's oldest brother, Thomas
Marshall, Jr., seventeen years of age, was commissioned captain in a
Virginia State Regiment at this time. (Heitman, 285.) Thus all the male
members of the Marshall family, old enough to bear arms, were officers
in the War of the Revolution. This important fact demonstrates the
careful military training given his sons by Thomas Marshall before
1775--a period when comparatively few believed that war was probable.

[393] This was the common lot; Washington told Congress that, of the
thousands of his men at Valley Forge, "few men have more than one shirt,
many only the moiety of one and some none at all." (Washington to
President of Congress, Dec. 23, 1777; _Writings_: Ford, vi, 260.)

[394] Slaughter, 107-08.

[395] Howe, 266.

[396] Slaughter, 108.

[397] Weedon, 134; also, Heitman, 285.

[398] _Ib._

[399] Description of Marshall at Valley Forge by eye-witness, in _North
American Review_ (1828), xxvi, 8.

[400] Ninth Virginia. (Heitman, 72.)

[401] _North American Review_ (1828), xxvi, 8.

[402] Weedon, Feb. 8, 1778, 226-27. Washington took the severest
measures to keep officers from associating with private soldiers.

[403] _Ib._, 227-28.

[404] _Ib._, Jan. 5, 1778; 180.

[405] See Washington's affecting appeal to the soldiers at Valley Forge
to keep up their spirits and courage. (Weedon, March 1, 1778, 245-46.)

[406] Channing, ii, 559.

[407] See Rush's anonymous letter to Henry and the correspondence
between Henry and Washington concerning the cabal. (Henry, i, 544-51.)

[408] Marshall, i, 217.

[409] Trevelyan, iv, 301.

[410] _Ib._, 303-04.

[411] "The idea that any one Man Alone can save us is too silly for any
Body but such weak Men as Duché to harbor for a Moment." (Adams to Rush,
Feb. 8, 1778; _Old Family Letters_, 11; and see Lodge: _Washington_, i,
208; also Wallace, chap. ix.)

[412] Sparks, 252; and Marshall, i, 218.

[413] Washington to President of Congress, Dec. 23, 1777; _Writings_:
Ford, vi, 257-65. And see Washington's comprehensive plans for the
reorganization of the entire military service. (Washington to Committee
of Congress, Jan. 28, 1778; _ib._, 300-51.)

[414] _Hist. Mag._, v, 131.

[415] On April 10, 1778, Ædanus Burke of South Carolina broke a quorum
and defied Congress. (Secret Journals of Congress, April 10, 11, 24, 25,
1778, i, 62; and see Hatch, 21.)

[416] Trevelyan, iv, 291-92.

[417] Washington to Harrison, Dec. 18, 1778; _Writings_: Ford, vii,
297-98.

[418] _Ib._

[419] At this period and long after a State was referred to as "the
country."

[420] Washington to Harrison, Dec. 18, 1778; _Writings_: Ford, vii,
297-98.

[421] Until after Jefferson's Presidency, our statesmen often spoke of
our "empire." Jefferson used the term frequently.

[422] Washington to Harrison, Dec. 18, 1778; _Writings_: Ford, vii,
301-02.

[423] "My estate is a large one ... to wit upwards of ten thousand acres
of valuable land on the navigable parts of the James river and two
hundred negroes and not a shilling out of it is or ever was under any
incumbrance for debt." (Jefferson to Van Staphorst and Hubbard, Feb. 28,
1790; _Works_: Ford, vi, 33.) At the time of Valley Forge Jefferson's
estate was much greater, for he had sold a great deal of land since
1776. (See Jefferson to Lewis, July 29, 1787; _ib._, v, 311.)

[424] Jefferson to Pendleton, July, 1776; _ib._, ii, 219-20.

[425] Jefferson's _Autobiography_; _Works_: Ford, i, 57.

[426] Tucker, i, 92 _et seq._; Randall, i, 199 _et seq._; _Works_: Ford,
ii, 310, 323, 324.

[427] Bloodshed, however, Jefferson thought necessary. See _infra_, vol.
II, chap. I.

[428] See vol. II of this work.

[429] Jefferson's _Autobiography_; _Works_: Ford, i, 79.

[430] Burnaby to Washington, April 9, 1788; _Cor. Rev._: Sparks, ii,
100-02. Washington sent no written answer to Burnaby.

[431] See _infra_.

[432] Washington to Banister, April 21, 1778; _Writings_: Ford, vi,
477-87. In thus trying to arouse Congress to a sense of duty, Washington
exaggerates the patience of his troops. They complained bitterly; many
officers resigned and privates deserted in large numbers. (See _supra_.)

[433] _Ib._

[434] Thayer, 12. For camp sports, see Waldo's poem, _Hist. Mag._, vii,
272-74.

[435] Lossing, ii, 595, _et seq._

[436] Marshall, i, 230. And see Hatch's clear account of the training
given by this officer (63). To the work of Von Steuben was due the
excellent discipline under fire at Monmouth. And see Kapp, already
cited; and Bolton, 132. Even Belcher says that our debt to Von Steuben
is as great as that to Lafayette. (Belcher, ii, 14.)

[437] Washington to President of Congress, April 30, 1778; _Writings_:
Ford, vi, 507, and footnote to 505-06. And see Channing, iii, 292.

[438] See Channing, iii, 286, 288; and Marshall, i, 235, 236.

[439] Marshall, i, 237.

[440] Sparks, 267; and Moore's _Diary_, i, 48-50.

[441] Washington to McDougall, May 5, 1778; _Writings_: Ford, vii, 6.
Washington was advised of the treaty with the French King before it was
formally presented to Congress.

[442] Description by Major André, who took part in this amazing
performance, reprinted in _American Historical and Literary
Curiosities_, following plate 26. And see Moore's _Diary_, ii, 52-56.

[443] Trevelyan, iv, 376.

[444] Marshall, i, 252.

[445] Marshall speaks of "one thousand select men" under Wayne;
Maxwell's division was with Wayne under Lee; Marshall was in the battle,
and it seems certain that he was among Wayne's "select men" as on former
and later occasions.

[446] Marshall, i, 252.

[447] Lafayette to Marshall; Marshall, i, footnote to 255.

[448] Marshall, i, 254-59.

[449] For descriptions of the battle of Monmouth see Washington to
President of Congress, July 1, 1778; _Writings_: Ford, vii, 76-86; and
to John Augustine Washington, July 4, 1778; _ib._, 89-92. Also Marshall,
i, 251-56; Trevelyan, iv, 376-80; Irving, iii, 423-34; Sparks, 272-78;
Lossing, ii, 354-65.

[450] Marshall, i, 251-56.

[451] _Ib._, 257.

[452] _Ib._, 257-58.

[453] Girardin follows Marshall in his fair treatment of Lee. (Burk, iv,
290.)

[454] He was promoted July 1, 1778. (Heitman, 285.)

[455] The whole patriot army everywhere, except in the extreme south and
west, now numbered only sixteen thousand men. (Marshall, i, 306-07.)

[456] The fullest and most accurate account of the capture of Stony
Point, and conditions immediately preceding, is given by Dawson in his
_Assault on Stony Point_.

[457] Binney, in Dillon, iii, 315-16. The care in the selection of the
various commands of "light infantry," so often used by Washington after
the first year of the war, is well illustrated by his orders in this
case. "The officers commanding regiments," runs Washington's orders,
"will be particularly careful in the choice of the men.... The Adjutant
General is desired to pass the men ... under critical inspection, and
return all who on any account shall appear unfit for this kind of
service to their regiments, to be replaced by others whom he shall
approve." (Washington's Order Book, iii, 110-11; MS., Lib. Cong.)

[458] Washington to Wayne (Private and Confidential), July 1, 1779;
Dawson, 18-19.

[459] Dawson, 20. Wayne's demand for sustenance and clothing, however,
is amusing. "The Light Corps under my Command," writes Wayne, "... have
had but two days fresh Provision ... nor more than three days allowance
of Rum _in twelve days_, which article I borrowed from Gen^l McDougall
with a Promise to Replace it. I owe him Seventy five Gallons--must
therefore desire you to forward three Hod^{ds} [hogsheads] of Rum to
this place with all possible Dispatch together with a few fat sheep &
ten Head of good Cattle." (Wayne to Issuing Commissary, July 9, 1779;
_ib._, 20-21.)

Wayne wrote to Washington concerning clothing: "I have an [word
illegible] Prejudice in favor of an Elegant Uniform & Soldierly
Appearance--... I would much rathar risque my life and Reputation at the
Head of the same men in an Attack Clothed & Appointed as I could
wish--with a Single Charge of Ammunition--than to take them as they
appear in Common with Sixty Rounds of Cartridges." (Dawson, 20-21.)

Washington wrote in reply: "I agree perfectly with you." (_Ib._, 21.)

[460] Marshall, i, 310.

[461] Wayne's order of battle was as picturesque as it was specific.
Officer and private were directed "to fix a Piece of White paper in the
most Conspicuous part of his Hat or Cap ... their Arms unloaded placing
their whole Dependence on the Bay^t.... If any Soldier presumes to take
his Musket from his Shoulder or Attempt to fire or begin the battle
until Ordered by his proper Officer he shall be Instantly put to death
by the Officer next him.... Should any Soldier ... attempt to Retreat
one Single foot or Sculk in the face of danger, the Officer next to him
is Immediately to put him to death." (_Ib._, 35-38.)

[462] Wayne to Delaney, July 15, 1779; Dawson, 46-47.

[463] The generous and even kindly treatment which the Americans
accorded the vanquished British is in striking contrast with the
latter's treatment of Americans under similar circumstances. When the
fort was taken, the British cried, "_Mercy, mercy, dear, dear
Americans_," and not a man was injured by the victors after he ceased to
resist. (Dawson, 53; and Marshall, i, 311.)

[464] The fort was captured so quickly that the detachment to which
Marshall was assigned had no opportunity to advance.

[465] Marshall, i, 314.

[466] _Ib._, 314-16.

[467] The rolls show Marshall in active service as captain until
December 9, 1779. (Records, War Dept.) He retired from the service
February 12, 1781. (Heitman, 285.)

[468] Binney, in Dillon, iii, 290. There often were more officers of a
State line than there were men to be officered; this was caused by
expiring enlistments of regiments.

[469] Tucker, i, 136.

[470] Marshall, i, 418.

[471] _Ib._, 139.

[472] Marshall, i, 419; Binney, in Dillon, iii, 290.

[473] Even the frightened Virginia women were ashamed. "Such terror and
confusion you have no idea of. Governor, Council, everybody
scampering.... How dreadful the idea of an enemy passing through such a
country as ours committing enormities that fill the mind with horror and
returning exultantly without meeting one impediment to discourage them."
(Eliza Ambler to Mildred Smith, 1781 MS. Also _Atlantic Monthly_,
lxxxiv, 538-39.) Miss Ambler was amused, too, it seems. She humorously
describes a boastful man's precipitate flight and adds: "But this is not
more laughable than the accounts we have of our illustrious G-[overno]-r
[Jefferson] who, they say, took neither rest nor food for man or horse
till he reached C-[arte]-r's mountain." (_Ib._) This letter, as it
appears in the _Atlantic Monthly_, differs slightly from the manuscript,
which has been followed in this note.

These letters were written while the laughing young Tarleton was riding
after the flying Virginia Government, of which Eliza Ambler's father was
a part. They throw peculiar light on the opinions of Marshall, who at
that time was in love with this lady's sister, whom he married two years
later. (See _infra_, chap. v.)

[474] An inquiry into Jefferson's conduct was formally moved in the
Virginia Legislature. But the matter was not pressed and the next year
the Legislature passed a resolution of thanks for Jefferson's
"impartial, upright, and attentive Administration." (See Eckenrode's
thorough treatment of the subject in his _Revolution in Virginia_, chap.
vii. And see Tucker, i, 149-56, for able defense of Jefferson; and Dodd,
63-64; also Ambler, 37.)

[475] Monroe, Bland, and Grayson are the only conspicuous exceptions.

[476] Story, in Dillon, iii, 338.

[477] This prevalent idea is well stated in one of Mrs. Carrington's
unpublished letters. "What sacrifice would not an American, or Virginian
(even) at the earliest age have made for so desireable an end--young as
I was [twelve years old when the war began] the Word Liberty so
_continually_ sounding in my ears seemed to convey an idea of everything
that was desirable on earth--true that in attaining it, I was to see
every present comfort abandoned; a charming home where peace and
prosperous fortune afforded all the elegancies of life, where nature and
art united to render our residence delightful, where my ancestors had
acquired wealth, and where my parents looked forward to days of ease and
comfort, all this was to be given up; but in infancy the love of change
is so predominant that we lose sight of consequences and are willing to
relinquish present good for the sake of novelty, this was particularly
the case with me." (Mrs. Carrington to her sister Nancy, March, 1809;
MS.; and see _infra_, chap. VIII.)

[478] Marshall, i, 355-65.

[479] _Ib._, 422-24.

[480] _Ib._, 425.

[481] Marshall, i, 425.




CHAPTER V

MARRIAGE AND LAW BEGINNINGS

    He was always and under all circumstances an enthusiast in love.
    (Mrs. Carrington, of Marshall's devotion to his wife.)


It was upon a night of gentle gayety in the late winter or early spring
of 1779-80 that Captain John Marshall first met Mary Ambler. When he
went back to Virginia to take charge of troops yet to be raised, he
visited his father, then commanding at the village of Yorktown.[482]
More than a year had gone by since Colonel Marshall had left his son at
Valley Forge. On this visit befell the most important circumstance of
John Marshall's private life. While he was waiting for his new command,
an event came to pass which relieved his impatience to prolong still
further his four years of active warfare and inspired him to improve
this period of enforced absence from the front, by preparing himself
for his chosen profession.

Jacquelin Ambler had been one of Yorktown's wealthiest men, and his
house was called a "mansion." But the war had ruined him
financially;[483] and the year 1780 found the Ambler family dwelling in
humble quarters. "The small retired tenement" to which reduced
circumstances forced him to take his invalid wife and young children
stood next door to the headquarters of Colonel Thomas Marshall. The
Ambler family was under Colonel Marshall's protection, for the father's
duties as State Councillor kept him at Williamsburg.[484] But the
reverse of Jacquelin Ambler's fortunes did not make this little house
less attractive than his "mansion" had been.

The unusual charm of his daughters rendered that modest abode very
popular. Indeed, this quality of pleasing seems to have been a common
possession of the Ambler family, and has become historic. It was this
very Jacquelin Ambler for whom Rebecca Burwell threw over Thomas
Jefferson. This Virginia belle was the love of Jefferson's youth. She
was the "Campana in die,"[485] "Belinda," "Adnileb," and "R. B." of
Jefferson's letters.[486] But Rebecca Burwell preferred Jacquelin
Ambler and became his wife.[487] The Ambler daughters inherited from
both mother and father that beauty, grace, and goodness which gave them
their extraordinary personal appeal.

During John Marshall's visit to his father the young ladies of Yorktown
saw to it that a "ball" was given. All the officers had been invited, of
course; but none of them aroused such interest as did Captain John
Marshall of the Eleventh Virginia Regiment of the line.

The fame of this young soldier, fresh from the war, was very bright in
Virginia. His name was on the lips of all the fair attendants of the
dance. They were in a quiver of expectancy at the prospect of meeting
the gallant captain who had fought under the great Washington and who
had proved himself a hero at Brandywine and Germantown, at Valley Forge
and Monmouth.

Years afterwards, Eliza, the eldest of the Ambler daughters, described
the event in a letter full of color written to her sister. "We had been
accustomed to hear him [Marshall] spoken of by all as a very _paragon_,"
writes Mrs. Carrington, "we had often seen letters from him fraught
with filial and paternal affection. The eldest of fifteen children,
devoted from his earliest years to his younger brothers and sisters, he
was almost idolized by them, and every line received from him was read
with rapture."[488]

"Our expectations were raised to the highest pitch," writes the elder
sister, "and the little circle of York was on tiptoe on his arrival. Our
girls particularly were emulous who should be first introduced"; but
Mary Ambler, then only fourteen years old, and very diffident and
retiring, astonished her sister and friends by telling them that "we
were giving ourselves useless trouble; for that she, for the first time,
had made up her mind to go to the ball, though she had not even been at
dancing school, and was resolved to set her cap at him and eclipse us
all."[489]

Great was their disappointment when finally Captain Marshall arrived.
His ungainly dress, slouch hat, and rustic bearing instantly quenched
their enthusiasm.[490] They had looked forward to seeing a handsome,
romantic figure, brilliantly appareled, and a master of all the pleasing
graces; instead they beheld a tall, loose-jointed young man, thin to
gauntness, whose clothes were hanging about him as if upon a rack, and
whose manners were awkward and timid to the point of embarrassment. No
game was he for Cupid's bow, thought these belles of old Yorktown.

"I, expecting an Adonis, lost all desire of becoming agreeable in his
eyes when I beheld his awkward figure, unpolished manners, and total
negligence of person";[491] thus writes Eliza Ambler of the impression
made upon her by the young soldier's disheveled aspect and unimpressive
deportment. But Mary Ambler stuck to her purpose, and when John Marshall
was presented to her, both fell in love at first sight. Thus began a
lifelong romance which, in tenderness, exaltation, and constancy is
unsurpassed in the chronicle of historic affections.

It was no longer alone the veneration for a father that kept the son in
Yorktown. Day followed day, and still the gallant captain tarried. The
unfavorable first judgment gave way to appreciation. He soon became a
favorite at every house in the village.[492] His gift of popularity was
as great, it seems, among women as among men; and at the domestic
fireside as well as in the armed camp. Everybody liked John Marshall.
There was a quality in him that inspired confidence. Those who at first
had been so disappointed in his dress and manners soon forgot both in
his wholesome charm. They found him delightfully companionable.[493]
Here was preëminently a social being, they discovered. He liked people,
and wanted people to like him. He was full of fun and hearty laughter;
and his rare good sense and sheer manliness furnished solid foundation
to his lighter qualities.

[Illustration: PAGE OF A LETTER FROM JOHN MARSHALL TO HIS WIFE
DESCRIBING THEIR COURTSHIP DATED AT WASHINGTON, FEBRUARY 23, 1824
(_Facsimile_)]

So every door in Yorktown was thrown open to Captain John Marshall. But
in Jacquelin Ambler's house was the lodestone which drew him. April had
come and the time of blossoming. On mellow afternoons, or by candlelight
when the sun had set, the young lover spent as much time as the
proprieties would permit with Mary Ambler, telling her of the war, no
doubt; and, as her sister informs us, reading poetry by the hour.[494]
Through it all he made love as hard as he could. He wooed as ardently
and steadily as he had fought.[495]

The young lover fascinated the entire Ambler family. "Under the slouched
hat," testifies Mary Ambler's sister, "there beamed an eye that
penetrated at one glance the inmost recesses of the human character; and
beneath the slovenly garb there dwelt a heart complete with every
virtue. From the moment he loved my sister he became truly a brother to
me.... Our whole family became attached to him, and though there was
then no certainty of his becoming allied to us, we felt a love for him
that can never cease.... There was no circumstance, however trivial, in
which we were concerned, that was not his care."

He would "read to us from the best authors, particularly the Poets, with
so much taste and feeling, and pathos too, as to give me an idea of
their sublimity, which I should never have had an idea of. Thus did he
lose no opportunity of blending improvement with our amusements, and
thereby gave us a taste for books which probably we might never
otherwise have had."[496]

The time had come when John Marshall must acquire a definite station in
civil life. This was especially necessary if he was to take a wife; and
married he would be, he had decided, whenever Mary Ambler should be old
enough and would consent. He followed his parents' wishes[497] and began
his preparation for the bar. He told his sweetheart of his purpose, of
course, and her family "learned [of it] with pleasure."[498] William and
Mary College, "the only public seminary of learning in the State,"[499]
was only twelve miles from Yorktown; and there the young officer
attended the law lectures of George Wythe for perhaps six weeks[500]--a
time so short that, in the opinion of the students, "those who finish
this Study [law] in a few months, either have strong natural parts or
else they know little about it."[501] Recalling a criticism of one of
Marshall's "envious contemporaries" some years later, Mrs. Carrington
says: "Allusion was made to his short stay at William and Mary, and that
he could have gained little there."[502]

It is said also that Marshall took a course in philosophy under
President Madison, then the head of the little college and afterwards
Bishop of Virginia; but this is unlikely, for while the soldier-student
took careful notes of Wythe's lectures, there is not a word in his
notebook[503] concerning any other college activity. The faculty
consisted of five professors.[504] The college was all but deserted at
that time and closed entirely the year after John Marshall's flying
attendance.[505]

Although before the Revolution "the Necessary Expence of each Scholar
_yearly_ ... [was] only 15 £ Currency,"[506] one of Marshall's fellow
students testifies that: "The amazing depreciation of our Currency has
raised the price of Every Article so enormously that I despair'd of my
Father's ability to support me here another year.... Board & entring
under two Professors amounts to 4000^{wt} of Tobacco."[507]

The intercourse of students and faculty was extremely democratic. There
was a "college table" at which the students took their meals. According
to the college laws of that time, beer, toddy, and spirits and water
might be served, if desired.[508] The students were not required to wear
either coats or shoes if the weather was warm.[509]

At a later period the students boarded at private houses in the
town.[510] Jefferson, who, several years before Marshall's short
attendance, was a student at William and Mary, describes the college and
another public building as "rude, mis-shapen piles, which, but that they
have roofs, would be taken for brick-kilns."[511] Chastellux, however,
declares that "the beauty of the edifice is surpassed [only] by the
richness of its library and that still farther, by the distinguished
merit of several of the professors," and he describes the college as "a
noble establishment ... which does honour to Virginia."[512]

The youths attending William and Mary during Marshall's brief sojourn
were disgusted by the indifference of the people of the vicinity toward
the patriot cause. "The want of Men, Money, Provisions, & still more of
Public Virtue & Patriotism is universal--a melancholy Lethargick
disposition pervades all Ranks in this part of the Country, they appear
as if determined to struggle no more, but to 'stand still & see what the
Lord will do for them,'" wrote John Brown in July, 1780.[513]

Mr. Wythe, the professor of law, was the life of the little institution
in this ebbing period of war-time. He established "a Moot Court, held
monthly or oftener ... Mr. Wythe & the other professors sit as Judges.
Our Audience consists of the most respectable of the Citizens, before
whom we plead our Causes, given out by Mr. Wythe Lawyer like I assure
you." The law professor also "form'd us into a Legislative Body,
Consisting of about 40 members." Wythe constituted himself Speaker of
these seedling lawmakers and took "all possible pains to instruct us in
the Rules of Parliament." These nascent Solons of old William and Mary
drew original bills, revised existing laws, debated, amended, and went
through all the performances of a legislative body.[514]

The parent chapter of the Phi Beta Kappa Society had been instituted at
the college; and to this Marshall was immediately elected. "At a meeting
of the Society the 18 of May, 1780, Capt. John Marshall being
recommended as a gentleman who would make a worthy member of this
Society was balloted for & received."[515] This is an important date;
for it fixes with reasonable certainty the time of Marshall's entrance
at William and Mary. He was probably the oldest of all the students; his
army service made him, by far, the most interesting and notable; his
extraordinary social qualities never failed to render him popular. It
is, therefore, certain that he was made a member of Phi Beta Kappa
without much delay. He probably entered college about May 1.[516]

At once we find the new member appointed on the society's debating team.
Two students were selected to "declaim" the question and two to "argue"
it.

"Mr. Cabell & Mr. Peyton Short appointed to declaim the Question whether
any form of government is more favorable to our new virtue than the
Commonwealth.

"Mr. Joseph Cabell and Mr. Marshall to argue the same. An adjournment.
William Short President.

"At a meeting in course Saturday June y^e 3^{rd}, 1780, Mr. President
leaving y^e chair with Mr. Fitzhugh to y^e same. Mr. W^m Cabell
according to order delivered his declamation on y^e question given out.
Mr. Peyton Short, being unprepared, was silent on y^e occasion. Mr.
Marshall, a gentleman not immediately interested, argued y^e
Question."[517]

But it was not debating on which John Marshall was intent, nor any other
college duties. He had hard work, it appears, to keep his mind on the
learned words that fell from the lips of Mr. Wythe; for on the inside
cover and opposite page of the book in which he made notes of Wythe's
law lectures,[518] we find in John Marshall's handwriting the words,
"Miss Maria Ambler"; and again "Miss M. Ambler"; and still again, this
time upside down, "Miss M. Ambler--J. Marshall"; and "John Marshall,
Miss Polly Am."; and "John, Maria"; and "John Marshall, Miss Maria"; and
"Molly Ambler"; and below this once more, "Miss M. Ambler"; on the
corner of the page where the notes of the first lecture are recorded is
again inscribed in large, bold letters the magic word, "Ambler."[519]

Jacquelin Ambler had been made Treasurer of State, and, early in June,
1780, the family removed from Yorktown to Richmond, stopping for a day
or two in Williamsburg. While there "a ball was ... given ... by certain
gentlemen in compliment ... 'to the Misses Amblers.'" Eliza Ambler
describes the incidents of this social event. The affair was "simple and
frugal as to its viands," she writes, "but of the brilliancy of the
company too much cannot be said; it consisted of more Beauty and
Elegance than I had ever witnessed before.... I was transported with
delight." Yet she could not "treat ... the prime mover in this civility
with common good manners.... His more successful friend Marshall, was
devoted to my sister."[520]

This "ball" ended John Marshall's college studies; the lure of Mary
Ambler was greater than that of learning to the none too studious
captain. The abrupt ending[521] of the notes he was making of Mr.
Wythe's lectures, in the midst of the course, otherwise so inexplicable,
was caused by her two days' sojourn in the college town. Forthwith he
followed to Richmond, where, for two weeks he gayly played the part of
the head of the family (acted "Pa," as Marshall quaintly expresses it),
apparently in Jacquelin Ambler's absence.[522]

Although he had scarcely begun his studies at William and Mary; although
his previous instruction by professional teachers was meager and
fragmentary; and although his father could well afford the small expense
of maintaining him at Williamsburg long enough for him to secure at
least a moderate education, John Marshall never returned to
college.[523] No more lectures of Professor Wythe for the young lover.
He would begin his professional career at once and make ready for the
supreme event that filled all his thoughts. So while in Richmond he
secured a license to practice law. Jefferson was then Governor, and it
was he who signed the license to the youth who was to become his
greatest antagonist. Marshall then went to Fauquier County, and there,
on August 28, 1780, was admitted to the bar. "John Marshall, Gent.,
produced a license from his Excellency the Governor to practice law and
took the oaths prescribed by act of Assembly," runs the entry in the
record.[524]

He waited for the recruiting of the new troops he was to command, and
held himself in readiness to take the field, as indeed he rushed to do
without orders when Arnold's invasion came. But the new troops never
were raised and Marshall finally left the service. "I continued in the
army until the year 1781," he tells us, "when, being without a command,
I resigned my commission in the interval between the invasion of
Virginia by Arnold and Phillips."[525]

During this season of inaction he resolved to be inoculated against the
smallpox. This was another effect which falling in love had on the young
soldier; for he could, had he wished, have had this done more than once
while with Washington's army.[526] He would now risk his health no
longer. But the laws of Virginia made the new method of treating
smallpox almost impossible.[527] So away on foot[528] went John Marshall
to Philadelphia to be made proof against this disfiguring malady.

According to Marshall's own account, he covered the ground at an amazing
pace, averaging thirty-five miles a day; but when he arrived, so
disreputable did he appear that the tavern refused to take him in.[529]
Long-bearded and slovenly clothed, with battered hat and uncouth
manners, he gave the unfavorable first impression which the same causes
so often produced throughout his life. This is not to be wondered at,
for, writing twenty years afterward, when Marshall as Chief Justice was
at the height of his career, his sister-in-law testifies that his "total
negligence of person ... often produced a blush on her [Marshall's
wife's] cheek."[530] But he finally secured lodgings, was inoculated,
and, made secure from the attacks of the dreaded scourge, back he fared
to Virginia and Mary Ambler.

And Marshall made love as he made war, with all his might. A very
hurricane of a lover he must have been; for many years afterward he
declared to his wife's sister that "he looked with astonishment at the
present race of lovers, so totally unlike what he had been
himself."[531] In a touching letter to his wife, written almost half a
century later, Marshall thus recalls the incidents of his courtship:--

"I begin with the ball at York, and with the dinner on the fish at your
house the next day: I then retrace my visit to York, our splendid
assembly at the Palace[532] in Williamsburg, my visit to Richmond where
I acted Pa for a fortnight, my return the ensuing fall and the very
welcome reception you gave me on your arrival from Dover, our little
tiffs & makings up, my feelings while Major Dick[533] was courting you,
my trip to the cottage,[534] the lock of hair, my visit again to
Richmond the ensuing fall, and all the thousand indescribable but deeply
affecting instances of your affection or coldness which constituted for
a time the happiness or misery of my life and will always be recollected
with a degree of interest which can never be lost while recollection
remains."[535]

When he left the army in 1781, Marshall, although a member of the bar,
found no legal business to do.[536] He probably alternated between the
Oak Hill plantation in Fauquier County, where his help was sadly needed,
and Richmond, where the supreme attraction drew him. Thus another year
wore on. In this interval John Marshall engaged in politics, as was the
custom of young gentlemen of standing and ambition; and in the fall of
1782 was elected to the House of Delegates from Fauquier County.[537]
This honor was a material help, not only in his career, but in his suit
for the hand of Mary Ambler.

Also, membership in the Legislature required him to be, where his heart
was, in Richmond, and not two months had John Marshall been in the
Capital as a member of Virginia's Legislature when he was married. "In
January [3d] 1783," writes Marshall, "I intermarried with Mary Willis
Ambler, the second daughter of Mr. Jacquelin Ambler, then Treasurer of
Virginia, who was the third son of Mr. Richard Ambler, a gentleman who
had migrated from England, and settled at York Town, in Virginia."[538]

The Ambler abode in Richmond was not a romantic place for the wedding.
The primitive town was so small that when the Ambler family reached it
Eliza exclaimed, "_where_ we are to lay our weary heads Heaven knows!"
And she describes the house her father rented as "a little dwelling" so
small that "our whole family can scarcely stand up altogether in it";
but Jacquelin Ambler took it because, poor as it was, it was "the only
decent tenement on the hill."[539]

The elder Ambler sister thus pictures the Richmond of 1780: "This little
town is made up of Scotch factors who inhabit small tenements scattered
here and there from the river to the hill. Some of them look, as Colonel
[Thomas] Marshall has observed, as if the poor Caledonians had brought
them over on their backs, the weakest of whom being glad enough to stop
at the bottom of the hill, others a little stronger proceeding higher,
whilst a few of the stoutest and the boldest reached the summit."[540]
Eight years after the Amblers moved to Richmond, Jefferson wrote: "The
town below Shockoe creek is so deserted you cannot get a person to live
in a house there rent free."[541]

But Mary's cousin, John Ambler, who, at twenty-one years of age, found
himself "one of the richest men in the State of Virginia,"[542] solved
the difficulty by offering his country seat for the wedding.[543] Mary
Ambler was only seventeen when she became the young lawyer's bride,[544]
and John Marshall was a little more than ten years older. After the
bridegroom had paid the minister his fee, "he had but one solitary
guinea left."[545]

This does not mean that John Marshall was without resources, but it
indicates the scarcity of ready money in Virginia at the close of the
war. Indeed, Marshall's father, while not yet the wealthy man he
afterwards became,[546] had, as we have seen, already acquired very
considerable property. He owned at this time at least two thousand acres
in Fauquier County;[547] and twenty-two negroes, nine of them tithable
(sixteen years old), twelve horses, and twenty-two head of cattle.[548]

When John Marshall married Miss Ambler, his father gave him one negro
and three horses.[549] The following year (1784) the Tithable Book shows
but five tithable negroes, eight young negroes, eight horses, and
eighteen head of cattle in Thomas Marshall's name. He evidently sold his
other slaves and personal property or took them with him to Kentucky. So
it is likely that the slaves, horses, and cattle left behind were given
to his son, together with a part of Thomas Marshall's Fauquier County
farm.[550]

During the Revolution Thomas Marshall was, like most other Continental
officers, in sore need of money. He tried to sell his land to Washington
for cash. Washington was anxious to buy "Lands in my own Neck at
(almost) any price ... in ye way of Barter ... for Negroes ... or ...
for any thing else (except Breeding Mares and Stock)." But he could not
pay money. He estimated, by memory, Thomas Marshall's land at £3000, at
a time when, because of depreciated money and inflated prices, "a Barrl.
of Corn which used to sell for 10/ will now fetch 40--when a Barl. of
Porke that formerly could be had for £3 sells for £15." So Washington
in 1778 thought that "Marshall is not a necessitous man." When it came
to trading, the father of his country was keen and suspicious, and he
feared, it would seem, that his boyhood friend and comrade in arms would
"practice every deception in his power in order to work me ... up to his
price."[551]

Soon after John Marshall met Mary Ambler at the "ball" at Yorktown, and
just before he went to William and Mary College, his father sold this
very land that Washington had refused to purchase. On March 28, 1780,
Thomas Marshall conveyed to Major Thomas Massey [Massie] one thousand
acres in Fauquier County for "thirty thousand pounds Currency."[552]
This was a part of the seventeen hundred acres for which the elder
Marshall had paid "nine hundred and twelve pounds ten shillings" seven
years before.[553] The change shows the startling depreciation of
Virginia currency as well as Continental paper, both of which in 1780
had reached a very low point and were rapidly going down.[554]

[Illustration: _Mary Ambler Marshall_]

It reveals, too, the Marshall family's extreme need of cash, a want
sorely felt by nearly everybody at this period; and the familiar fact
that ownership of land did not mean the ready command of money. The year
after John Marshall's marriage he wrote to James Monroe: "I do not know
what to say to your scheme of selling out. If you can execute it you
will have made a very capital sum, if you can retain your lands you
will be poor during life unless you remove to the western country, but
you have secured for posterity an immense fortune"; and Marshall tells
Monroe that the latter can avail himself of the knowledge of Kentucky
lands possessed by the members of the Marshall family who were on the
ground.[555]

Writing twenty years later of economic conditions during the period now
under review, Marshall says: "Real property was scarcely vendible; and
sales of any article for ready money could be made only at a ruinous
loss.... In every quarter were found those who asserted it to be
impossible for the people to pay their public or private debts."[556]

So, although his father was a very well-to-do man when John Marshall
began married life, he had little or no ready money, and the son could
not expect much immediate paternal assistance. Thomas Marshall had to
look out for the bringing-up of a large number of other children and to
consider their future; and it is this fact which probably induced him to
seek fortune anew in the Kentucky wilderness after he was fifty years of
age. Legend has it that Thomas Marshall made his venture on Washington's
advice. At any rate, he settled, permanently, in Kentucky in the fall of
1783.[557]

The fledgling lawyer evidently expected to start upon a legal career in
the county of his birth; but immediately after marrying Miss Ambler, he
established himself at Richmond, where her family lived, and there began
the practice of the law. While his marriage into the Ambler family was
inspired exclusively by an all-absorbing love, the alliance was a
fortunate one for John Marshall from the practical point of view. It
gave him the support of a powerful State official and one of the
best-liked men in all Virginia. A favor asked by Jacquelin Ambler was
always granted if possible; and his recommendation of any one was final.
The Ambler household soon became the most attractive in Richmond, as it
had been in Yorktown; and Marshall's marriage to Mary Ambler gave him a
social standing which, in the Virginia of that day, was a very great
asset in business and politics.

The house to which he took his bride was a tiny one-story affair of
wood, with only two rooms; the best house the Amblers themselves could
secure, as we have seen, was so small that the "whole family" could
scarcely crowd into it. Three years before John Marshall and his young
wife set up housekeeping, Richmond could "scarce afford one comfort in
life."[558] According to Mrs. Carrington the dwelling-houses had no
curtains for the windows.[559] The streets were open spaces of earth,
unpaved and without sidewalks. Many years after Marshall established
himself at the new and raw Virginia Capital, Main Street was still
unpaved, deep with dust when dry and so muddy during a rainy season that
wagons sank up to the axles. Footways had been laid only at intervals
along the town's chief thoroughfare; and piles of ashes and cinders were
made to serve as street-crossings, from which, if one misstepped on a
dark and rainy night, he found himself deep in the mire. A small stream
flowed diagonally across Main Street, flooding the surface; and the
street itself ended in gullies and swamps.[560] In 1783 the little town
was, of course, still more primitive.

There were no brick or stone buildings in Richmond when Marshall was
married. The Capitol, itself, was an ugly structure--"a mere wooden
barn"--on an unlovely site at the foot of a hill.[561] The private
dwellings, scattered about, were the poor, mean, little wooden houses
already described by Eliza Ambler.

Trade was in the hands of British merchants who managed to retain their
commercial hold in spite of the Revolution.[562] Rough, heavy wagons
drawn by four or six horses brought in the produce of the country, which
included "deer and bear skins, furs, ginseng, snake-root," and even
"dried rattlesnakes ... used to make a viper broth for consumptive
patients."[563] These clumsy vehicles were sometimes a month in covering
less than two hundred miles.[564] Specie was the money chiefly used in
the back country and the frontier tradesmen made remittances to Richmond
by placing a "bag of gold or silver in the centre of a cask of melted
wax or tallow ... or [in a] bale of hemp."[565]

There was but one church building and attendance was scanty and
infrequent.[566] The principal amusement was card-playing, in which
everybody indulged,[567] and drinking was the common practice.[568] The
town sustained but one tavern which was kept by a Neapolitan named
Farmicola. This hostelry had two large rooms downstairs and two above.
The beds were under the roof, packed closely together and unseparated by
partitions. When the Legislature met, the inn was crowded; and
"Generals, Colonels, Captains, Senators, Assembly-men, Judges, Doctors,
Clerks, and crowds of Gentlemen of every weight and calibre and every
hue of dress, sat altogether about the fire, drinking, smoking,
singing, and talking ribaldry."[569]

Such were conditions in the town of Richmond when John Marshall hazarded
his adventure into the legal profession there in 1783. But it was the
seat of the State Government, and the place where the General Court of
Appeals and the High Court of Chancery were located. Yet small, poor,
and mean as was the Virginia Capital of that day, not even Philadelphia,
New York, or Boston could boast of a more brilliant bar.

Randolph and Wickham, Innes and Ronald, Campbell and Call, and others
whose distinction has made the bar of the Old Dominion historic,
practiced at Richmond. And the court around which this extraordinary
constellation gathered was equally eminent. Pendleton, whose intellect
and industry more than supplied early defects in education, was
president of the Court of Appeals; Wythe was one of the judges of the
High Court of Chancery, of which he afterwards became sole chancellor;
Paul Carrington and others of almost equal stature sat with Pendleton on
the Supreme Bench. Later on appeared the erudite, able, and commanding
Roane, who, long afterwards, when Marshall came into his own, was to be
his most formidable antagonist in the clash of courts.

Among such lawyers and before a court of this high quality the young
attorney from the backwoods of Fauquier County began his struggle for a
share of legal business. He had practically no equipment except his
intellect, his integrity, and his gift for inspiring confidence and
friendship. Of learning in the law, he had almost none at all. He had
read Blackstone, although not thoroughly;[570] but the only legal
training that Marshall had received was acquired during his few weeks at
William and Mary College. And in this romantic interval, as we have
seen, he was thinking a good deal more about Mary Ambler than about
preparing himself for his career.

We know exactly to which of Wythe's lectures Marshall had listened; for
he took notes of them. He procured a thick, blank book strongly bound in
calf. In this he wrote in a large, firm hand, at the top of the page,
the topics of lectures which Wythe had announced he would give, leaving
after each headline several pages for notes.[571] Since these notes are
a full record of Marshall's only formal instruction in the law, a
complete list of the subjects, together with the space allotted to each,
is as important as it is interesting.

On the subject of Abatement he wrote three pages; on Accounts, two
pages; on Accord and Satisfaction, one page; Actions in General, one and
a half pages; Actions Local and Transitory, one fourth page; Actions Qui
Tam, one and one fourth pages; Actions on the Case, three and one half
pages; Agreements, three pages; Annuity and Rent Charge, two pages;
Arbitrament and Award, one and one half pages; Assault and Battery, two
thirds of a page; Assignment, one half page; Assumpsit, one and a half
pages; Attachment, one half page; Audita Querela, one fourth page;
Authority, one fourth page; Bail in Civil Causes, one half page; Bail in
Criminal Causes, one and two thirds pages; Bailment, two pages; Bargain
and Sale, one half page; Baron and Feme, four pages; Bastardy, three
quarters page; Bills of Sale, one half page; Bills of Exceptions, one
half page; Burglary, one page; Carriers, one page; Certiorari, one half
page; Commitments, one half page; Condition, five and one half pages;
Coparceners, one and one half pages; Costs, one and one fourth pages;
Covenant, three pages; Curtesy of England, one half page; Damages, one
and one half pages; Debt, one and one half pages; Descent, one and one
half pages; Detinue, one half page; Devises, six and one half pages;
Disseisin, two lines; Distress, one and two thirds pages; Dower, two
pages; Duress, one third page; Ejectment, two and two thirds pages;
Election, two thirds page; Error, two and one third pages; Escape in
Civil Cases, one and one fifth pages; Estates in Fee Simple, three
fourths page; Estate for Life and Occupancy, one and four fifths pages;
Evidence, four pages, two lines; Execution, one and five sixths pages;
Executors and Administrators, eleven pages; Extinguishment, two thirds
page; Extortion, one half page; Felony, three and one sixth pages;
Forcible Entry and Detainer, three fourths page; Forgery, three pages;
Forfeiture, two and four fifths pages; Fraud, three pages, one line;
Grants, three and three fourths pages; Guardian, two and five sixths
pages; Heir and Ancestor, five pages, two lines; Idiots and Lunatics,
three pages; Indictments, four pages, three lines; Infancy and Age, nine
and one half pages; Information, one and one fifth pages; Injunction,
one and two thirds pages; Inns and Innkeepers, two and two thirds pages;
Joint Tenants and Tenants in Common, nine and one sixth pages; Jointure,
three pages.

We find six pages he had reserved for notes on the subject of Juries
left blank, and two blank pages follow the caption, "Justice of the
Peace." But he made seventeen and two thirds pages of notes on the
subjects of Leases and Terms for Years, and twelve and one half pages on
the subject of Legacies. This ended his formal legal studies; for he
made no notes under the remaining lecture subjects.[572]

Not an ideal preparation to attract clients, we must admit, nor to serve
them well when he got them. But slender and elementary as was his store
of learning, his apparel, manners, and habits were even less likely to
bring business to this meagerly equipped young advocate.

Marshall made practically no money as a lawyer during his first year in
Richmond. Most of his slender income seems to have been from his salary
as a member of the Legislature.[573] He enters in his Account Book in
1783 (where it begins) several receipts "by my civil list warrants,"
and several others, "Rec^d. from Treasury." Only four fees are entered
for the whole year--one for three pounds, another for two pounds, eleven
shillings, one for two pounds, ten shillings, and a fourth for two
pounds, eight shillings.

On the contrary, he paid one pound, two shillings, sixpence for "advice
fee given the attorney for opinion on surveyors fees." He bought "one
pair Spectacles" for three shillings and ninepence. His sociable nature
is revealed at the beginning of his career by entries, "won at Whist
24-1-4" and "won at Whist 22/"; and again "At Backgammon 30/-1-10." Also
the reverse entry, "Lost at Whist £3 14/."[574]

The cost of living in Richmond at the close of the Revolution is shown
by numerous entries. Thirty-six bushels of oats cost Marshall three
pounds, ten shillings, sixpence. He paid one pound for "one pair
stockings"; and one pound, eighteen shillings, sixpence for a hat. In
1783 a tailor charged him one pound, eight shillings, sixpence for
"making a Coat." He enters "stockings for P.[olly][575] 6 dollars." A
stove "Dutch Oven" cost fourteen shillings and eightpence; and "150
bushels coal for self 7-10" (seven pounds, ten shillings).

In October of the year of his marriage he paid six shillings for wine
and "For rum £9-15." His entries for household expenditures for these
months give an idea of the housekeeping: "Given Polly 6 dollars
£4-10-6; ... a coffe pot 4/; 1 yd. Gauze 3/6; 2 Sugar boxes £1-7-6;
Candlestick &c. 3/6 1 y^{d}. Linnen for P. 2/6; 2 pieces of bobbin 1/6;
Tea pot 3/; Edging 3/6; Sugar pot 1/6; Milk 1/; Thimble 4/2;
Irons 9/,... Tea 20/."[576]

The entries in Marshall's Account Book for the first year and a half of
his married life are indiscriminately and poorly made, without dates of
receipts and expenditures. Then follows a period up to June, 1785, where
the days of the month are stated. Then come entries without dates; and
later, the dates sometimes are given and sometimes not. Marshall was as
negligent in his bookkeeping as he was in his dress. Entries in the
notebook show on their face his distaste for such details. The Account
Book covers a period of twelve years, from 1783 to 1795.

He was exceedingly miscellaneous in his expenses. On January 14, 1784,
he enters as items of outlay: "Whist 30/" and "Whist 12/," "cow
£3-12-8" and "poker 6/," "To Parson 30/." This date is jammed in,
plainly an afterthought, and no more dates are specified until June 7.
Other characteristic entries at this time are, on one day, "Turkeys 12/
Wood 24/ Whist £18"; and on another day, "Beef 26/8--Backgammon £6." An
important entry, undated, is, "Paid the University in the hands of Mr.
Tazewell for Col^o Marshall as Surveyor of Fayette County 100"
(pounds).[577]

On July 5, 1784, he enters among receipts "to my service in the Assembly
34-4" (pounds and shillings); and among his expenses for June 22 of that
year, he enters "lost at Whist £19" and on the 26th, "Col^o [James]
Monroe & self at the Play 1-10"[578] (one pound, ten shillings). A week
later the theater again cost him twelve shillings; and on the third he
enters an outlay "to one Quarter cask wine 14" (pounds, or about fifty
dollars Virginia currency). On the same day appears a curious entry of
"to the play 13/" and "Pd for Col^o Monroe £16-16." He was lucky at
whist this month, for there are two entries during July, "won at whist
£10"; and again, "won at whist 4-6" (four pounds, six shillings). He
contributes to St. John's Church one pound, eight shillings. During this
month their first child was born to the young couple;[579] and there are
various entries for the immediate expenses of the event amounting to
thirteen pounds, four shillings, and threepence. The child was
christened August 31 and Marshall enters, "To house for christening 12/
do. 2/6."

The Account Book discloses his diversified generosity. Preacher,
horse-race, church, festival, card-game, or "ball" found John Marshall
equally sympathetic in his contributions. He was looking for business
from all classes in exactly the same way that young lawyers of our own
day pursue that object. Also, he was, by nature, extremely sociable and
generous. In Marshall's time the preachers bet on horses and were
pleasant persons at balls. So it was entirely appropriate that the young
Richmond attorney should enter, almost at the same time, "to Mr.
Buchanan 5" (pounds)[580] and "to my subscription for race £4-4";[581]
"Saint Taminy 11 Dollars--3-6"[582] (three pounds, six shillings); and
still again, "paid my subscription to the ball 20/-1"; and later,
"expenses at St. John's [church] 2-3" (pounds and shillings).

Marshall bought several slaves. On July 1, 1784, he enters, "Paid for
Ben 90-4"[583] (ninety pounds, four shillings). And in August of that
year, "paid for two Negroes £30" and "In part for two servants £20."
And in September, "Paid for servants £25," and on November 23, "Kate &
Evan £63." His next purchase of a slave was three years later, when he
enters, May 18, 1787, "Paid for a woman bought in Gloster £55."

Shoeing two horses in 1784 cost Marshall eight shillings; and a hat for
his wife cost three pounds. For a bed-tick he paid two pounds, nine
shillings. We can get some idea of the price of labor by the following
entry: "Pd. Mr. Anderson for plaistering the house £10-2." Since he was
still living in his little rented cottage, this entry would signify that
it cost him a little more than thirty-five dollars, Virginia currency,
to plaster two rooms in Richmond, in 1784. Possibly this might equal
from seven to ten dollars in present-day money. He bought his first
furniture on credit, it appears, for in the second year of his married
life he enters, December "31st P^d. M^r. Mason in part for furniture 10"
(pounds).

At the end of the year, "Pd balance of my rent 43-13" (pounds and
shillings). During 1784, his third year as a lawyer, his fees steadily
increased, most of them being about two pounds, though he received an
occasional fee of from five to nine pounds. His largest single fee
during this year was "From Mr. Stead 1 fee 24" (pounds).

He mixed fun with his business and politics. On February 24, 1784, he
writes to James Monroe that public money due the latter could not be
secured. "The exertions of the Treasurer & of your other friends have
been ineffectual. There is not one shilling in the Treasury & the keeper
of it could not borrow one on the faith of the government." Marshall
confides to Monroe that he himself is "pressed for money," and adds that
Monroe's "old Land Lady Mrs. Shera begins now to be a little
clamorous.... I shall be obliged I apprehend to negotiate your warrants
at last at a discount. I have kept them up this long in hopes of drawing
Money for them from the Treasury."

But despite financial embarrassment and the dull season, Marshall was
full of the gossip of a convivial young man.

"The excessive cold weather," writes Marshall, "has operated like magic
on our youth. They feel the necessity of artificial heat & quite wearied
with lying alone, are all treading the broad road to Matrimony. Little
Steward (could you believe it?) will be married on Thursday to Kitty
Haie & Mr. Dunn will bear off your old acquaintance Miss Shera.

"Tabby Eppes has grown quite fat and buxom, her charms are renovated &
to see her & to love her are now synonimous terms. She has within these
six weeks seen in her train at least a score of Military & Civil
characters. Carrington, Young, Selden, Wright (a merchant), & Foster
Webb have alternately bow'd before her & been discarded.

"Carrington 'tis said has drawn off his forces in order to refresh them
& has march'd up to Cumberland where he will in all human probability be
reinforced with the dignified character of Legislator. Webb has returned
to the charge & the many think from their similitude of manners &
appetites that they were certainly designed for each other.

"The other Tabby is in high spirits over the success of her antique
sister & firmly thinks her time will come next, she looks quite spruce &
speaks of Matrimony as of a good which she yet means to experience.
Lomax is in his county. Smith is said to be electioneering. Nelson has
not yet come to the board. Randolph is here and well.... Farewell, I am
your J. Marshall."[584]

Small as were the comforts of the Richmond of that time, the charm,
gayety, and hospitality of its inhabitants made life delightful. A young
foreigner from Switzerland found it so. Albert Gallatin, who one day was
to be so large a factor in American public life, came to Richmond in
1784, when he was twenty-two years old. He found the hospitality of the
town with "no parallel anywhere within the circle of my travels....
Every one with whom I became acquainted," says Gallatin, "appeared to
take an interest in the young stranger. I was only the interpreter of a
gentleman, the agent of a foreign house that had a large claim for
advances to the State.... Every one encouraged me and was disposed to
promote my success in life.... John Marshall, who, though but a young
lawyer in 1783, was almost at the head of the bar in 1786, offered to
take me in his office without a fee, and assured me that I would become
a distinguished lawyer."[585]

During his second year in Richmond, Marshall's practice showed a
reasonable increase. He did not confine his legal activities to the
Capital, for in February we find thirteen fees aggregating thirty-three
pounds, twelve shillings, "Rec^d. in Fauquier" County. The accounts
during this year were fairly well kept, considering that happy-go-lucky
John Marshall was the bookkeeper. Even the days of the month for
receipts and expenditures are often given. He starts out with active
social and public contributions. On January 18, 1785, he enters, "my
subscription to Assemblies [balls] 4-4" (pounds and shillings), and
"Jan. 29 Annual subscription for Library 1-8" (pound, shillings).

On January 25, 1785, he enters, "laid out in purchasing Certificates
35-4-10." And again, July 4, "Military Certificates pd for self £13-10-2
at 4 for one £3-7-7. Interest for 3 years £2-8 9." A similar entry is
made of purchases made for his father; on the margin is written, "pd
commissioners."

[Illustration: _Richmond in 1800_]

He made his first purchase of books in January, 1785, to the amount of
"£4-12/." He was seized with an uncommon impulse for books this year, it
appears. On February 10 he enters, "laid out in books £9-10-6." He
bought eight shillings' worth of pamphlets in April. On May 5, Marshall
paid "For Mason's Poems" nine shillings. On May 14, "books 17/-8" and
May 19, "book 5/6" and "Blackstones Commentaries[586] 36/," and May
20, "Books 6/." On May 25, there is a curious entry for "Bringing books
in stage 25/." On June 24, he purchased "Blair's Lectures" for one
pound, ten shillings; and on the 2d of August, a "Book case" cost him
six pounds, twelve shillings. Again, on September 8, Marshall's entries
show, "books £1-6," and on October 8, "Kaim's Principles of Equity 1-4"
(one pound, four shillings). Again in the same month he enters, "books
£6-12," and "Spirit of Law" (undoubtedly Montesquieu's essay), twelve
shillings.

But, in general, his book-buying was moderate during these formative
years as a lawyer. While it is difficult to learn exactly what
literature Marshall indulged in, besides novels and poetry, we know that
he had "Dionysius Longinus on the Sublime"; the "Works of Nicholas
Machiavel," in four volumes; "The History and Proceedings of the House
of Lords from the Restoration," in six volumes; the "Life of the Earl of
Clarendon, Lord High Chancellor of England"; the "Works of C.
Churchill--Poems and Sermons on Lord's Prayer"; and the "Letters of Lord
Chesterfield to his son." A curious and entertaining book was a
condensed cyclopædia of law and business entitled "Lex Mercatoria
Rediviva or The Merchant's Directory," on the title-page of which is
written in his early handwriting, "John Marshall Richmond."[587]
Marshall also had an English translation of "The Orations of Æschines
and Demosthenes on the Crown."[588]

Marshall's wine bills were very moderate for those days, although as
heavy as a young lawyer's resources could bear. On January 31, 1785, he
bought fourteen shillings' worth of wine; and two and a half months
later he paid twenty-six pounds and ten shillings "For Wine"; and the
same day, "beer 4d," and the next day, "Gin 30/." On June 14 of the same
year he enters, "punch 2/6," the next day, "punch 3/," and on the next
day, "punch 6/."[589]

Early in this year Marshall's father, now in Kentucky and with opulent
prospects before him, gave his favorite son eight hundred and
twenty-four acres of the best land in Fauquier County.[590] So the
rising Richmond attorney was in comfortable circumstances. He was
becoming a man of substance and property; and this condition was
reflected in his contributions to various Richmond social and religious
enterprises.

He again contributed two pounds to "S^t. Taminy's" on May 9, 1785, and
the same day paid six pounds, six shillings to "My club at
Farmicolas."[591] On May 16 he paid thirty shillings for a "Ball" and
nine shillings for "music"; and May 25 he enters, "Jockie Club 4-4"
(pounds and shillings). On July 5 he spent six shillings more at the
"Club"; and the next month he again enters a contribution to "S^t. Johns
[Episcopal Church] £1-16." He was an enthusiastic Mason, as we shall
see; and on September 13, 1785, he enters, "p^d. Mason's Ball
subscription for 10" (pounds). October 15 he gives eight pounds and four
shillings for an "Episcopal Meeting"; and the next month (November 2,
1785) subscribes eighteen shillings "to a ball." And at the end of the
year (December 23, 1785) he enters his "Subscription to Richmond Assem.
3" (pounds).

Marshall's practice during his third year at the Richmond bar grew
normally. The largest single fee received during this year (1785) was
thirty-five pounds, while another fee of twenty pounds, and still
another of fourteen pounds, mark the nearest approaches to this
high-water mark. He had by now in Richmond two negroes (tithable), two
horses, and twelve head of cattle.[592]

He was elected City Recorder during this year; and it was to the efforts
of Marshall, in promoting a lottery for the purpose, that the Masonic
Hall was built in the ambitious town.[593]

The young lawyer had deepened the affection of his wife's family which
he had won in Yorktown. Two years after his marriage the first husband
of his wife's sister, Eliza, died; and, records the sorrowing young
widow, "my Father ... dispatched ... my darling Brother Marshall to
bring me." Again the bereaved Eliza tells of how she was "conducted by
my good brother Marshall who lost no time" about this errand of comfort
and sympathy.[594]

February 15, 1786, he enters an expense of twelve pounds "for moving my
office" which he had painted in April at a cost of two pounds and
seventeen shillings. This year he contributed to festivities and social
events as usual. In addition to his subscriptions to balls, assemblies,
and clubs, we find that on May 22, 1786, he paid nine shillings for a
"Barbecue," and during the next month, "barbecue 7/" and still again,
"barbecue 6/." On June 15, he "paid for Wine 7-7-6," and on the 26th,
"corporation dinner 2-2-6." In September, 1786, his doctor's bills were
very high. On the 22d of that month he paid nearly forty-five pounds
for the services of three physicians.[595]

Among the books purchased was "Blair's sermons" which cost him one pound
and four shillings.[596] In July he again "P^d. for S^t. Taminy's feast
2" (pounds). The expense of traveling is shown by several entries, such
as, "Expenses up & down to & from Fauquier 4-12" (four pounds, twelve
shillings); and "Expenses going to Gloster &c 5" (pounds); "expenses
going to W^{ms}burg 7" (pounds); and again, "expenses going to and
returning from Winchester 15" (pounds); and still again, "expenses going
to W^{ms}burg 7" (pounds). On November 19, Marshall enters, "For quarter
cask of wine 12-10" (twelve pounds and ten shillings). On this date we
find, "To Barber 18" (shillings)--an entry which is as rare as the
expenses to the theater are frequent.

He appears to have bought a house during this year (1786) and enters on
October 7, 1786, "P^d. Mr. B. Lewis in part for his house £70 cash & 5£
in an order in favor of James Taylor----75"; and November 19, 1786,
"Paid Mr. B. Lewis in part for house 50" (pounds); and in December he
again "P^d. Mr. Lewis in part for house 27-4" (twenty-seven pounds, four
shillings); and (November 19) "P^d. Mr. Lewis 16" (pounds); and on the
28th, "Paid Mr. Lewis in full 26-17-1 1/4."

In 1786, the Legislature elected Edmund Randolph Governor; and, on
November 10, 1786, Randolph advertised that "The General Assembly having
appointed me to an office incompatible with the further pursuit of my
profession, I beg leave to inform my clients that John Marshall Esq.
will succeed to my business in General &c."[597]

At the end of this year, for the first time, Marshall adds up his
receipts and expenditures, as follows: "Received in the Year 1786
according to the foregoing accounts 508-4-10." And on the opposite page
he enters[598]--

  To my expenses  432______________________
                    1               8
                ---------------------------
                  433      --       8

In 1787 Marshall kept his accounts in better fashion. He employed a
housekeeper in April, Mrs. Marshall being unable to attend to domestic
duties; and from February, 1787, until May of the following year he
enters during each month, "Betsy Mumkins 16/." The usual expenditures
were made during this year, and while Marshall neglects to summarize his
income and outlay, his practice was still growing, although slowly. On
December 3, 1787, his second child was born.[599]

In January of 1787 occurred the devastating Richmond fire which
destroyed much of the little city;[600] and on February 7, Marshall
enters among his expenses, "To my subscription to the sufferers by fire
21" (pounds).

Marshall's name first appears in the reports of the cases decided by the
Virginia Court of Appeals in 1786. In May of that year the court handed
down its opinion in Hite _et al. vs._ Fairfax _et al._[601] It involved
not only the lands directly in controversy, but also the validity of the
entire Fairfax title and indirectly that of a great deal of other land
in Virginia. Baker, who appears to have been the principal attorney for
the Fairfax claimants, declared that one of the contentions of the
appellants "would destroy every title in the Commonwealth." The case was
argued for the State by Edmund Randolph, Attorney-General, and by John
Taylor (probably of Caroline). Marshall, supporting Baker, acted as
attorney for "such of the tenants as were citizens of Virginia." The
argument consumed three days, May 3 to 5 inclusive.[602]

Marshall made an elaborate argument, and since it is the first of his
recorded utterances, it is important as showing his quality of mind and
legal methods at that early period of his career. Marshall was a little
more than thirty years old and had been practicing law in Richmond for
about three years.

The most striking features of his argument are his vision and foresight.
It is plain that he was acutely conscious, too, that it was more
important to the settlers who derived their holdings from Lord Fairfax
to have the long-disputed title settled than it was to win as to the
particular lands directly in controversy. Indeed, upon a close study of
the complicated records in the case, it would seem that Joist Hite's
claim could not, by any possibility, have been defeated. For, although
the lands claimed by him, and others after him, clearly were within the
proprietary of Lord Fairfax, yet they had been granted to Hite by the
King in Council, and confirmed by the Crown; Lord Fairfax had agreed
with the Crown to confirm them on his part; he or his agents had
promised Hite that, if the latter would remain on the land with his
settlers, Fairfax would execute the proper conveyances to him, and
Fairfax also made other guarantees to Hite.

But it was just as clear that, outside of the lands immediately in
controversy, Lord Fairfax's title, from a strictly legal point of view,
was beyond dispute except as to the effect of the sequestration
laws.[603] It was assailed, however, through suggestion at least, both
by Attorney-General Randolph and by Mr. Taylor. There was, at this time,
a strong popular movement on foot in Virginia to devise some means for
destroying the whole Fairfax title to the Northern Neck. Indeed, the
reckless royal bounty from which this enormous estate sprang had been
resented bitterly by the Virginia settlers from the very beginning;[604]
the people never admitted the justice and morality of the Fairfax grant.
Also, at this particular period, there was an epidemic of debt
repudiation, evasion of contracts and other obligations, and assailing
of titles.[605]

So, while Baker, the senior Fairfax lawyer, referred but briefly to the
validity of the Fairfax title and devoted practically the whole of his
argument to the lands involved in the case then before the court,
Marshall, on the other hand, made the central question of the validity
of the whole Fairfax title the dominant note of his argument. Thus he
showed, in his first reported legal address, his most striking
characteristic of going directly to the heart of any subject.

Briefly reported as is his argument in Hite vs. Fairfax, the qualities
of far-sightedness and simple reasoning, are almost as plain as in the
work of his riper years:--

"From a bare perusal of the papers in the cause," said Marshall, "I
should never have apprehended that it would be necessary to defend the
title of Lord _Fairfax_ to the Northern Neck. The long and quiet
possession of himself and his predecessors; the acquiescence of the
country; the several grants of the crown, together with the various acts
of assembly recognizing, and in the most explicit terms admitting his
right, seemed to have fixed it on a foundation, not only not to be
shaken, but even not to be attempted to be shaken.

"I had conceived that it was not more certain, that there was such a
tract of country as the Northern Neck, than that Lord _Fairfax_ was the
proprietor of it. And if his title be really unimpeachable, to what
purpose are his predecessors criminated, and the patents they obtained
attacked? What object is to be effected by it? Not, surely, the
destruction of the grant; for gentlemen cannot suppose, that a grant
made by the crown to the ancestor for services rendered, or even for
affection, can be invalidated in the hands of the heir because those
services and affection are forgotten; or because the thing granted has,
from causes which must have been foreseen, become more valuable than
when it was given. And if it could not be invalidated in the hands of
the heir, much less can it be in the hands of a purchaser.

"Lord _Fairfax_ either was, or was not, entitled to the territory; if he
was, then it matters not whether the gentlemen themselves, or any
others, would or would not have made the grant, or may now think proper
to denounce it as a wise, or impolitic, measure; for still the title
must prevail; if he was not entitled, then why was the present bill
filed; or what can the court decree upon it? For if he had no title, he
could convey none, and the court would never have directed him to make
the attempt.

"In short, if the title was not in him, it must have been in the crown;
and, from that quarter, relief must have been sought. The very filing of
the bill, therefore, was an admission of the title, and the appellants,
by prosecuting it, still continue to admit it....

"It [the boundary] is, however, no longer a question; for it has been
decided, and decided by that tribunal which has the power of determining
it. That decision did not create or extend Lord _Fairfax's_ right, but
determined what the right originally was. The bounds of many patents are
doubtful; the extent of many titles uncertain; but when a decision is
once made on them, it removes the doubt, and ascertains what the
original boundaries were. If this be a principle universally
acknowledged, what can destroy its application to the case before the
court?"

The remainder of Marshall's argument concerns the particular dispute
between the parties. This, of course, is technical; but two paragraphs
may be quoted illustrating what, even in the day of Henry and Campbell,
Wickham and Randolph, men called "Marshall's eloquence."

"They dilate," exclaimed Marshall, "upon their hardships as first
settlers; their merit in promoting the population of the country; and
their claims as purchasers without notice. Let each of these be
examined.

"Those who explore and settle new countries are generally bold, hardy,
and adventurous men, whose minds, as well as bodies, are fitted to
encounter danger and fatigue; their object is the acquisition of
property, and they generally succeed.

"None will say that the complainants have failed; and, if their
hardships and danger have any weight in the cause, the defendants shared
in them, and have equal claim to countenance; for they, too, with
humbler views and less extensive prospects, 'have explored, bled for and
settled a, 'till then, uncultivated desert.'"[606]

Hite won in this particular case; but, thanks to Marshall's argument,
the court's decision did not attack the general Fairfax title. So it was
that Marshall's earliest effort at the bar, in a case of any magnitude,
was in defense of the title to that estate of which, a few years later,
he was to become a principal owner.[607] Indeed, both he and his father
were interested even then; for their lands in Fauquier County were
derived from or through Fairfax.

Of Marshall's other arguments at this period, no record exists. We know,
however, from his Account Book, that his business increased steadily;
and, from tradition, that he was coming to be considered the ablest of
the younger members of the distinguished Richmond bar. For his services
in this, his first notable case, Marshall received one hundred and nine
pounds, four shillings, paid by fifty-seven clients. Among those
employing the young attorney was George Washington. In the account of
fees paid him in Hite vs. Fairfax, he enters: "Gen^l G. Washington 1-4"
(pounds and shillings) and "A. Washington 1-4." Marshall's record of
this transaction is headed: "List of fees rec'd from Ten^{ts} Fairfax
Ad^s Hite," referring to the title of the case in the lower court.

An evidence of his growing prosperity is the purchase from Aquella and
Lucy Dayson of two hundred and sixty acres of land in Fauquier County,
for "one hundred and sixty pounds current money of Virginia."[608] This
purchase, added to the land already given him by his father,[609] made
John Marshall, at thirty-one years of age, the owner of nearly one
thousand acres of land in Fauquier.

Marshall's Account Book shows his generosity toward his brothers and
sisters, who remained in Virginia when Thomas Marshall went to Kentucky
to establish himself. There are frequent entries of money advanced to
his brothers, particularly James M., as, "Given my brother James £3-9";
or, "To my brother James £36-18," etc. Marshall's sister Lucy lived in
his house until her marriage to the wealthy John Ambler.[610] The young
lawyer was particularly attentive to the wants of his sister Lucy and
saw to it that she had all the advantages of the Virginia Capital. In
his Account Book we find many entries of expenses in her behalf; as, for
example, "for Lucy £5-8-3"; and again, a few days later, "given
Eliza[611] for Lucy" four pounds, sixteen shillings; and still later,
"for Lucy 10-6" (ten pounds, six shillings); and, "P^d. for Lucy
entering into dancing school 2-2" (two pounds, two shillings).

Throughout Marshall's Account Book the entries that most frequently
occur are for some expense for his wife. There is hardly a page without
the entry, "given Polly" so much, or "for Polly" so much, and the
entries are for liberal amounts. For instance, on January 15, 1785, he
enters, "Sundries for Polly £8-6-8 1/2"; on the 18th, "Given Polly 6/";
on the 25th, "for Polly 11/ 7 1/2"; and on the 29th, "Given Polly for a
hat 36/." And later, "Given Polly 56/" and "Given Polly 2-16" (pounds
and shillings); and "for Polly £3." "For Polly 5-7-5"; "Sundries for
Polly, 12-6" and "Left with Polly 10-4" (pounds and shillings). "Given
Polly £1-8"; "Gloves for Polly 7/6." Such entries are very numerous.

The young wife, who had become an invalid soon after her marriage,
received from her husband a devotion and care which realized poetic
idealism. "His exemplary tenderness to our unfortunate sister is without
parallel," testifies Mrs. Carrington. "With a delicacy of frame and
feeling that baffles all description, she became, early after her
marriage, a prey to an extreme nervous affliction which more or less has
embittered her comfort thro' life; but this only served to increase his
care and tenderness.... He is always and under every circumstance an
enthusiast in love."[612]

Marshall's affection for his wife grew with the years and was nourished
by her increasing infirmities. It is the most marked characteristic of
his entire private life and is the one thing which differentiates him
sharply from most of the eminent men of that heroic but, socially,
free-and-easy period. Indeed, it is in John Marshall's worship of his
delicate and nerve-racked wife that we find the beginnings of that
exaltation of womankind, which his life, as it unrolls, will disclose.

[Illustration: PAGE OF MARSHALL'S ACCOUNT BOOK, MAY, 1787
(_Facsimile_)]

John Marshall's respect, admiration, reverence, for woman became so
notable that it was remarked by all who knew him, and remains to this
day a living tradition in Richmond. It resembled the sentiment of the
age of chivalry. While the touching incidents, glowing testimonials, and
most of the letters that reveal this feature of Marshall's character
occur more vividly after he ascended the bench,[613] the heart of the
man cannot be understood as we go along without noting the circumstance
in his earlier married life.


FOOTNOTES:

[482] Mrs. Carrington to her sister Nancy, 1810; _Atlantic Monthly_,
lxxxiv, 546; and same to same, March, 1809; MS. Thomas Marshall was now
Colonel of the Virginia State Regiment of Artillery and continued as
such until February 26, 1781, when his men were discharged and he became
"a reduced officer." (Memorial of Thomas Marshall, _supra._ See Appendix
IV.) This valuable historical document is the only accurate account of
Thomas Marshall's military services. It disproves the statement
frequently made that he was captured when under Lincoln at Charleston,
South Carolina, May 12, 1780. Not only was he commanding the State
Artillery in Virginia at that time, but on March 28 he executed a deed
in Fauquier County, Virginia, and in June he was assisting the Ambler
family in removing to Richmond. (See _infra._) If a Thomas Marshall was
captured at Charleston, it must have been one of the many others of that
name. There was a South Carolina officer named Thomas Marshall and it is
probably he to whom Heitman refers. Heitman (ed. 1914), 381. For account
of the surrender of Charleston, see McCrady, iii, 507-09.

[483] "Certain it is that another Revolutionary War can never happen to
affect and ruin a family so completely as ours has been!" It "involved
our immediate family in poverty and perplexity of every kind." (Mrs.
Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv, 545-47.)

[484] _Ib._

[485] Dog Latin and crude pun for "bell in day."

[486] Jefferson to Page and to Fleming, from Dec. 25, 1762, to March 20,
1764; _Works_: Ford, i, 434-52. In these delightful letters Jefferson
tells of his infatuation, sometimes writing "Adnileb" in Greek.

"He is a boy and is indisputably in love in this good year 1763, and he
courts and sighs and tries to capture his pretty little sweetheart, but
like his friend George Washington, fails. The young lady will not be
captured!" (Susan Randolph's account of Jefferson's wooing Rebecca
Burwell; _Green Bag_, viii, 481.)

[487] Tradition says that George Washington met a like fate at the hands
of Edward Ambler, Jacquelin's brother, who won Mary Cary from the young
Virginia soldier. While this legend has been exploded, it serves to
bring to light the personal attractiveness of the Amblers; for Miss Cary
was very beautiful, heiress of a moderate fortune, and much sought
after. It was Mary Cary's sister by whom Washington was captivated.
(Colonel Wilson Miles Cary, in Pecquet du Bellet, i, 24-25.)

[488] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv,
547. Of the letters which John Marshall wrote home while in the army,
not one has been preserved.

[489] _Ib._

[490] _Ib._

[491] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv,
547.

[492] _Hist. Mag._, iii, 165. While this article is erroneous as to
dates, it is otherwise accurate.

[493] _Ib._, 167.

[494] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv,
547.

[495] _Hist. Mag._, iii, 167.

[496] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv,
547.

[497] _Supra_, chap. II.

[498] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv,
547.

[499] "Notes on Virginia": Jefferson; _Works_: Ford, iv, 65.

[500] Mrs. Carrington to her sister Nancy; _supra._ William and Mary was
the first American institution of learning to adopt the modern lecture
system. (Tyler; _Williamsburg_, 153.) The lecture method was inaugurated
Dec. 29, 1779 (_ib._, 174-75), only four months before Marshall entered.

[501] John Brown to Wm. Preston, Feb. 15, 1780; _W. and M. C. Q._, ix,
76.

[502] Mrs. Carrington to her sister Nancy; MS.

[503] See _infra._

[504] The Reverend James Madison, Professor of Natural Philosophy and
Mathematics; James McClung, Professor of Anatomy and Medicine; Charles
Bellini, Professor of Modern Languages; George Wythe, Professor of Law;
and Robert Andrews, Professor of Moral and Intellectual Philosophy.
(_History of William and Mary College_, Baltimore, 1870, 70-71.) There
was also a fencing school. (John Brown to Wm. Preston, Feb. 15, 1780;
_W. and M. C. Q._, ix, 76.)

[505] _History of William and Mary College_, Baltimore, 1870, 45.
"Thirty Students and three professors joined the army at the beginning
of the Revolutionary War." (_Ib._, 41.) Cornwallis occupied
Williamsburg, June, 1781, and made the president's house his
headquarters. (Tyler: _Williamsburg_, 168.)

[506] Fithian, 107.

[507] John Brown to Wm. Preston, Jan. 26, 1780; _W. and M. C. Q._, ix,
75. Seventeen years later the total cost to a student for a year at the
college was one hundred and fifty to one hundred and seventy dollars.
(La Rochefoucauld, iii, 49-56.) The annual salary of the professors was
four hundred dollars and that of the president was six hundred dollars.

[508] In Marshall's time the college laws provided that "No liquors
shall be furnished or used at [the college students'] table except beer,
cider, toddy or spirits and water." (_History of William and Mary
College_ (Baltimore, 1870), 44; and see Fithian, Feb. 12, 1774, 106-07.)

Twelve years after Marshall took his hasty law course at William and
Mary College, a college law was published prohibiting "the drinking of
spirituous liquors (except in that moderation which becomes the prudent
and industrious student)." (_History of William and Mary College_, 44.)

In 1769 the Board of Visitors formally resolved that for professors to
marry was "contrary to the principles on which the College was founded,
and their duty as Professors"; and that if any professor took a wife
"his Professorship be immediately vacated." (Resolution of Visitors,
Sept. 1, 1769; _ib._, 45.) This law was disregarded; for, at the time
when Marshall attended William and Mary, four out of the five professors
were married men.

The college laws on drinking were merely a reflection of the customs of
that period. (See chaps. VII and VIII.) This historic institution of
learning turned out some of the ablest and best-educated men of the
whole country. Wythe, Bland, Peyton and Edmund Randolph, Taylor of
Caroline, Nicholas, Pendleton, Madison, and Jefferson are a few of the
William and Mary's remarkable products. Every one of the most
distinguished families of Virginia is found among her alumni. (See
Catalogue of Alumni, _History of William and Mary College_, 73-147. An
error in this list puts John Marshall in the class of 1775 instead of
that of 1780; also, he did not graduate.)

[509] _Infra_, chap. VII.

[510] La Rochefoucauld, iii, 49; and see Schoepf, ii, 79-80.

William Wirt, writing twenty-three years after Marshall's short
attendance, thus describes the college: "They [Virginians] have only one
publick seminary of learning.... This college ... in the niggardly
spirit of parsimony which they dignify with the name of economy, these
democrats have endowed with a few despicable fragments of surveyors'
fees &c. thus converting their national academy into a mere _lazaretto_
and feeding its ... highly respectable professors, like a band of
beggars, on the scraps and crumbs that fall from the financial table.
And, then, instead of aiding and energizing the police of the college,
by a few civil regulations, they permit their youth to run riot in all
the wildness of dissipation." (Wirt: _The British Spy_, 131, 132.)

[511] "Notes on Virginia": Jefferson; _Works_: Ford, iv, 69.

[512] Chastellux, 299. It is difficult to reconcile Jefferson's
description of the college building with that of the French traveler.
Possibly the latter was influenced by the French professor, Bellini.

[513] John Brown to Col. Wm. Preston, July 6, 1780: _W. and M. C. Q._,
ix, 80.

[514] John Brown to Col. Wm. Preston, July 6, 1780; _W. and M. C. Q._,
ix, 80.

[515] Records, Phi Beta Kappa Society of William and Mary College,
printed in _W. and M. C. Q._, iv, 236.

[516] Dr. Lyon G. Tyler, now President of William and Mary College,
thinks that this date is approximately correct.

[517] Records, Phi Beta Kappa Society of William and Mary College;
printed in, _W. and M. C. Q._, iv, 236.

[518] See _infra._

[519] Marshall's Notebook; MS. See _infra._

[520] Betsy Ambler to Mildred Smith, 1780; _Atlantic Monthly_, lxxxiv,
536.

[521] See _infra._

[522] Marshall to his wife, _infra._

[523] Marshall could have had at least one year at William and Mary, for
the college did not close until June, 1781. Also he could have continued
to attend for several weeks after he left in June, 1780; for student
John Brown's letters show that the college was still open on July 20 of
that year.

[524] County Court Minutes of Fauquier County, Virginia, 1773-80, 473.

[525] _Autobiography._

[526] Marshall, with other officers, did go to Philadelphia in January
or February of 1777 to be inoculated for smallpox (Marshall to Colonel
Stark, June 12, 1832, supporting latter's pension claim; MSS. Rev. War,
S. F. no. 7592, Pension Bureau); but evidently he was not treated or the
treatment was not effective.

[527] First, the written permission to be inoculated had to be secured
from all the justices of the county; next, all the neighbors for two
miles around must consent--if only one of them refused, the treatment
could not be given. Any physician was fined ten thousand dollars, if he
inoculated without these restrictions. (Hening, ix, 371.) If any one was
stricken with smallpox, he was carried to a remote cabin in the woods
where a doctor occasionally called upon him. (La Rochefoucauld, iii,
79-80; also De Warville, 433.)

[528] Horses were very scarce in Virginia at this time. It was almost
impossible to get them even for military service.

[529] _Southern Literary Messenger_ (quoting from a statement by
Marshall), ii, 183.

[530] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv,
547.

[531] _Ib._, 548. A story handed down through generations of lawyers
confirms Mrs. Carrington. "I would have had my wife if I had had to
climb Alleghanys of skulls and swim Atlantics of blood" the legend makes
Marshall say in one of his convivial outbursts. (The late Senator Joseph
E. McDonald to the author.)

[532] "The Palace" was a public building "not handsome without but ...
spacious and commodious within and prettily situated." ("Notes on
Virginia": Jefferson; _Works_: Ford, iv, 69.)

[533] Richard Anderson, the father of the defender of Fort Sumter.
(Terhune: _Colonial Homesteads_, 97.)

[534] A country place of Edward Ambler's family in Hanover County. (See
Pecquet du Bellet, i, 35.) Edward Ambler was now dead. His wife lived at
"The Cottage" from the outbreak of the war until her death in 1781.
(_Ib._, 26; and Mrs. Carrington to Mrs. Dudley, Oct. 10, 1796; MS.)

[535] Marshall to his wife, Feb. 23, 1826; MS.

[536] Most of the courts were closed because of the British invasion.
(Flanders, ii, 301.)

[537] _Infra_, chap. VI.

[538] _Autobiography._

[539] Betsy Ambler to Mildred Smith, 1780; _Atlantic Monthly_, lxxxiv,
537.

[540] Betsy Ambler to Mildred Smith, 1780; _Atlantic Monthly_, lxxxiv,
537.

[541] Jefferson to Short, Dec. 14, 1788; _Works_: Ford, vi, 24. Twelve
years after Marshall's marriage, there were but seven hundred houses in
Richmond. (Weld, i, 188.)

[542] Pecquet du Bellet, i, 35-37. He was very rich. (See inventory of
John Ambler's holdings, _ib._) This opulent John Ambler married John
Marshall's sister Lucy in 1792 (_ib._, 40-41); a circumstance of some
interest when we come to trace Marshall's views as influenced by his
connections and sympathies.

[543] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv,
548.

[544] She was born March 18, 1766, and married January 3, 1783. (Paxton,
37.) Marshall's mother was married at the same age.

[545] Mrs. Carrington to her sister Nancy; _Atlantic Monthly_, lxxxiv,
548.

[546] Thomas Marshall's will shows that he owned, when he died, several
years later, an immense quantity of land.

[547] _Supra_, chap. II.

[548] Fauquier County Tithable Book, 1783-84; MS., Va. St. Lib.

[549] _Ib._

[550] See _infra._

[551] Washington to Lund Washington, Aug. 15, 1778; _Writings_: Ford,
vii, 151-52.

[552] Records of Fauquier County (Va.), Deed Book, vii, 533.

[553] _Supra_, chap. II.

[554] See _infra_, chap. VIII.

[555] Marshall to Monroe, Dec. 28, 1784; Monroe MSS., vii, 832; Lib.
Cong.

[556] Marshall, ii, 104.

[557] Marshall to Monroe, Dec. 12, 1783; Draper Collection, Wis. Hist.
Soc. Thomas Marshall first went to Kentucky in 1780 by special
permission of the Governor of Virginia and while he was still Colonel of
the State Artillery Regiment. (Humphrey Marshall, i, 104, 120.) During
his absence his regiment apparently became somewhat demoralized. (Thomas
Marshall to Colonel George Muter, Feb. 1781; MS. Archives, Va. St. Lib.
and partly printed in _Cal. Va. St. Prs._, i, 549.) Upon his return to
Virginia, he was appointed Surveyor of a part of Kentucky, November 1,
1780. (Collins: _History of Kentucky_, i, 20.) The following year he was
appointed on the commission "to examine and settle the Public Accts in
the Western Country" and expected to go to Kentucky before the close of
the year, but did not, because his military certificates were not given
him in time. (Thomas Marshall to Governor Harrison, March 17, 1781;
_Cal. Va. St. Prs._, i, 578; and to Lieutenant-Governor Jameson, Oct.
14, 1781; _ib._, 549.) He opened his surveyor's office in Kentucky in
November, 1782. (Butler: _History of Kentucky_, 138.) In 1783 he
returned to Virginia to take his family to their new home, where he
remained until his death in 1802. (Paxton, 19.) Thomas Marshall was
immediately recognized as one of the leading men in this western
Virginia district, and was elected to the Legislature and became
"Surveyor [Collector] of Revenue for the District of Ohio." (See
_infra_, chaps, III and V.)

[558] Betsy Ambler to Mildred Smith; _Atlantic Monthly_, lxxxiv, 537.

[559] Mrs. Carrington to Mildred Smith, Jan. 10, 1786; MS.

[560] Mordecai, 45-47.

[561] _Ib._, 40.

[562] Mordecai, chap. ii.

[563] _Ib._, 51-52. This was more than twenty years after Marshall and
his young wife started housekeeping in Richmond.

[564] _Ib._, 53.

[565] _Ib._

[566] Meade, i, 140; Schoepf, ii, 62.

[567] Mordecai, chap, xxi; Schoepf, ii, 63 _et seq._

[568] See _supra_, chaps. I and VII.

[569] Schoepf, ii, 64. Marshall frequented this place and belonged to a
club which met there. (See entries from Marshall's Account Book,
_infra._)

[570] _Supra_, chap. II.

[571] This invaluable Marshall source is not a law student's commonplace
book alphabetically arranged, but merely a large volume of blank leaves.
It is six inches wide by eight in length and more than one in thickness.
The book also contains Marshall's accounts for twelve years after his
marriage. All reference hereafter to his receipts and expenses are from
this source.

[572] The notes are not only of lectures actually delivered by Wythe,
but of Marshall's reading on topics assigned for study. It is probable
that many of these notes were made after Marshall left college.

[573] See _infra_, chap. VI.

[574] Such entries as these denote only Marshall's social and friendly
spirit. At that period and for many years afterward card-playing for
money was universal in Virginia (La Rochefoucauld, iii, 77; and
Mordecai, ed. 1856, chap. xxi), particularly at Richmond, where the
women enjoyed this pastime quite as much as the men. (_Ib._) This,
indeed, was the case everywhere among women of the best society who
habitually played cards for money. (Also see Chastellux, 333-34.)

[575] Marshall's wife.

[576] The references are to pounds, shillings, and pence. Thus "3 14/"
means three pounds and fourteen shillings. "30-5-10" means thirty
pounds, five shillings, and tenpence; or "3/6" means three shillings,
sixpence. Where the Account Book indicates the amount without the signs
of denomination, I have stated the amount indicated by the relative
positions of the figures in the Account Book. Computation should be by
Virginia currency (which was then about three and one half dollars to
the Virginia pound) and not by the English pound sterling. This is not
very helpful, however, because there is no standard of comparison
between the Virginia dollar of that period and the United States dollar
of to-day. It is certain only that the latter has greater purchasing
power than the former. All paper money had greatly depreciated at the
time, however.

[577] The "University" was William and Mary College, then partly
supported by a portion of the fees of official surveyors. Thomas
Marshall was now Surveyor of Fayette County, Kentucky. (See _supra._)
This entry occurs several times.

[578] Such entries are frequent throughout his Account Book. During his
entire life, Marshall was very fond of the theater. (See _infra_, II,
chap, V; also vol. III of this work.)

[579] Thomas Marshall, born July 21, 1784. (Paxton, 90.)

[580] Buchanan was the Episcopal clergyman in Richmond at the time.
(Meade, i, 29, 140.)

[581] The races at Richmond, held bi-annually, were the great social
events of Virginia. (Mordecai, 178 _et seq._)

[582] This fixes the equivalent in State dollars for Virginia pounds and
shillings.

[583] He already owned one tithable negro in Fauquier County in 1783.
(Fauquier County Tithable Book, 1783-84; MS., Va. St. Lib. See _supra._)

[584] Marshall to Monroe, Feb. 24, 1784; MS., N.Y. Pub. Lib. Compare
with Jefferson's sentimental letters at the same age. Very few of
Marshall's letters during this period are extant. This one to Monroe is
conspicuously noticeable for unrestraint and joyousness. As unreserved
as he always was in verbal conversation, Marshall's correspondence soon
began to show great caution, unlike that of Jefferson, which increased,
with time, in spontaneity. Thus Marshall's letters became more guarded
and less engaging; while Jefferson's pen used ever more highly colored
ink and progressively wrote more entertaining if less trustworthy
matter.

[585] Gallatin to Maxwell, Feb. 15, 1848; Gallatin's _Writings_: Adams,
ii, 659. Also see Mordecai, 94-95.

[586] His father must have kept, for the time being, the Blackstone
purchased in 1772, although the volume later turned up in Marshall's
possession.

[587] This book, with the others named, bears the signature of Marshall
at this period of his life. They are the only books in existence which
certainly were bought by Marshall at that time, all other volumes he is
positively known to have had in his library being published at a later
date. All except one of those named, with others hereafter mentioned,
are in the possession of Judge J. K. M. Norton, Alexandria, Virginia.
The _Lex Mercatoria_ is, of course, in English. It is a large book
containing seven hundred seventy-five pages, seven by eight inches,
firmly bound in calf. It is "compiled from many standard authorities."
While it is an encyclopædia of law and business containing items such as
a comparison of the values of money of all lands, it is very readable
and entertaining. It is just the kind of book from which Marshall could
have derived information without being wearied by research. John Adams
also had a copy of Malynes's _Lex Mercatoria_, which seems to have been
a common possession of commercial lawyers throughout the country.

[588] This book is now in the possession of Hon. William Marshall
Bullitt, of Louisville, Kentucky.

[589] The numerous entries of this kind occurring throughout Marshall's
Account Book must not be misunderstood. At that time and for many
decades afterward, the habitual use of whiskey, wine, rum, brandy, etc.,
was the universal custom. They were bought in quantities and consumed
much as ordinary table waters now are. The common people, especially
those in the South, distilled their own stimulants. The people of New
England relied on the great distilleries of Boston and vicinity for rum,
of which they consumed enormous quantities. (See _infra_, chap. VII;
also chap. II, vol. II, of this work.)

[590] Records of Fauquier County (Va.), Deed Book, viii, 241, March 16,
1785.

[591] The tavern kept by Farmicola, where Marshall's club met. (See
_supra._)

[592] Henrico County Tithable Book; Va. St. Lib. He had, of course,
other slaves, horses, and cattle on his Fauquier County plantation.

[593] Christian, 28.

[594] Eliza Ambler to Mildred Smith, July 10, 1785; MS.; also printed in
_Atlantic Monthly_, lxxxiv, 540-41.

[595] Drs. McClurg, Foushee, and Mackie.

[596] This book was purchased for his wife, who was extremely religious.
The volume is in the possession of Judge J. K. M. Norton, Alexandria,
Virginia. On the fly-leaf appears, "Mrs. Mary W. Marshall," in
Marshall's handwriting. The book was also useful to Marshall for his own
study of rhetoric, since Blair's sermons stood very high, at this time,
as examples of style.

[597] Christian, 29, 30.

[598] This unbusinesslike balancing is characteristic of Marshall.

[599] Jacquelin Ambler Marshall, Dec. 3, 1787. (Paxton, 99.)

[600] _Ib._

[601] Call, i, 42.

[602] Records of the Court of Appeals.

[603] The estate had been sequestered during the Revolution.

[604] Wertenbaker: _V. U. S._, 123-26. For history of these grants, see
chap. IV, vol. II, of this work.

[605] See _infra_, chap. VI.

[606] Call, iv, 69-72.

[607] _Infra_, vol. II, chap. IV.

[608] Records Fauquier County (Va.), Deed Book, X, 29.

[609] See _supra._

[610] See _supra_, 166, footnote 3.

[611] Mrs. Carrington.

[612] Mrs. Carrington to her sister Nancy; MS. The mother and sister of
Mrs. Marshall were similarly afflicted. Mrs. Carrington frequently
mentions this fact in her correspondence.

[613] See vol. III of this work.




CHAPTER VI

IN THE LEGISLATURE AND COUNCIL OF STATE

    The proceedings of the Assembly are, as usual, rapidly
    degenerating with the progress of the session. (Madison.)

    Our Assembly has been employed chiefly in rectifying the mistakes
    of the last and committing new ones for emendation at the next.
    (Washington.)

    It is surprising that gentlemen cannot dismiss their private
    animosities but will bring them in the Assembly. (Marshall.)


In 1783, a small wooden building stood among the two or three hundred
little frame houses[614] which, scattered irregularly from the river to
the top of the hill, made up the town of Richmond at the close of the
Revolution. It was used for "balls," public banquets, and other
functions which the merriment or inclination of the miniature Capital
required. But its chief use was to house the legislative majesty of
Virginia. In this building the General Assembly of the State held its
bi-yearly sessions. Here met the representatives of the people after
their slow and toilsome journey on horseback through the dense forests
and all but impassable roads from every county of the Commonwealth.[615]

The twenty years that had passed since Marshall's father entered the
House of Burgesses had brought changes in the appearance and deportment
of Virginia's legislative body corresponding to those in the government
of the newly established State. But few elegancies of velvet coat, fine
lace, silk stocking, and silver buckle were to be seen in the Virginia
Legislature of 1783. Later these were to reappear to some extent; but at
the close of the Revolution democracy was rampant, and manifested itself
in clothing and manners as well as in curious legislation and strange
civil convulsions.

The visitor at a session of the Old Dominion's lawmakers beheld a
variegated array--one member in homespun trousers thrust into high
boots; still another with the fringed Indian leggings and hunting-shirt
of the frontier. Some wore great-coats, some jackets, and, in general,
an ostentatious disregard of fashionable apparel prevailed, which
occasional silk knee-breeches and stockings emphasized.

The looker-on would have thought this gathering of Virginia lawmakers to
be anything but a deliberative body enacting statutes for the welfare of
over four hundred thousand people. An eye-witness records that movement,
talk, laughter went on continuously; these Solons were not quiet five
minutes at a time.[616] All debating was done by a very few men.[617]
The others "for most part ... without clear ... ideas, with little
education or knowledge ... merely ... give their votes."[618]

Adjoining the big room where this august assembly sat, was an anteroom;
and at the entrance between these two rooms stood a burly doorkeeper,
who added to the quiet and gravity of the proceedings by frequently
calling out in a loud voice the names of members whom constituents or
visitors wanted to see; and there was a constant running back and
forth. The anteroom itself was a scene of conversational tumult.
Horse-racing, runaway slaves, politics, and other picturesque matters
were the subjects discussed.[619] Outsiders stood in no awe of these
lawgivers of the people and voiced their contempt, ridicule, or dislike
quite as freely as their approval or admiration.[620]

Into this assembly came John Marshall in the fall of 1782. Undoubtedly
his father had much to do with his son's election as one of Fauquier
County's representatives. His predominant influence, which had made
Thomas Marshall Burgess, Sheriff, and Vestryman before the Revolution,
had been increased by his admirable war record; his mere suggestion that
his son should be sent to the House of Delegates would have been
weighty. And the embryo attorney wanted to go, not so much as a step in
his career, but because the Legislature met in the town where Mary
Ambler lived. In addition to his father's powerful support, his late
comrades, their terms of enlistment having expired, had returned to
their homes and were hotly enthusiastic for their captain.[621] He was
elected almost as a matter of course.

No one in that motley gathering called the House of Delegates was
dressed more negligently than this young soldier-lawyer and politician
from the backwoods of Fauquier County. He probably wore the short "round
about" jacket, which was his favorite costume. And among all that
free-and-easy crowd no one was less constrained, less formal or more
sociable and "hail-fellow, well-met" than this black-eyed,
laughter-loving representative from the up country.

But no one had a sounder judgment, a more engaging personality, or a
broader view of the drift of things than John Marshall. And notable men
were there for him to observe; vast forces moving for him to study.
Thomas Jefferson had again become a member of the House after his
vindication from threatened impeachment. Patrick Henry was a member,
too, and William Cabell, Richard Henry Lee, Benjamin Harrison, and other
men whose names have become historic. During Marshall's later years in
the Legislature, James Madison, George Mason, William Grayson, Edmund
Randolph, George Nicholas, and others of like stature became Marshall's
colleagues.

It took eighteen days to organize the House at the first session John
Marshall attended.[622] The distance that members had to come was so
great, traveling so hard and slow, that not until November 9 had enough
members arrived to make a quorum.[623] Thomas Jefferson and Patrick
Henry were two of the absent and several times were ordered to be taken
into the custody of the sergeant-at-arms.[624] The Journal for Friday,
November 8, gravely announces that "it was ordered that Mr. Thomas
Jefferson, one of the members for Albemarle county who was taken
into the custody of a special messenger by Mr. Speaker's warrant,
agreeable to an order of the 28th ult., be discharged out of custody;
it appearing to the House that he has good cause for his present
non-attendance."[625]

Marshall must have favorably impressed the Speaker; for he was
immediately appointed a member of the important Committee for Courts of
Justice;[626] and two days later a member of a special committee "To
form a plan of national defense against invasions"; to examine into the
state of public arms, accouterments, and ammunition, and to consult with
the Executive "on what assistance they may want from the Legislature for
carrying the plan into execution."[627] Two days afterwards Marshall was
appointed on a special committee to frame a bill to amend the ordinance
of Convention.[628]

His first vote was for a bill to permit John M'Lean, who, because of
illness, went to England before the outbreak of the war, and who had
returned, to remain in Virginia and live with his family.[629]
Marshall's next two votes before taking his place as a member of the
Council of State are of no moment except as indicating the bent of his
mind for honest business legislation and for a strong and efficient
militia.[630] During November, Marshall was appointed on several other
committees.[631] Of these, the most important was the select committee
to bring in a bill for the reorganization of the militia,[632] which
reported a comprehensive and well-drawn measure that became a law.[633]
He was also on the Standing Committee of Privileges and Elections.[634]

The Virginia Legislature, during these years, was not a body to inspire
respect.[635] Madison had a great contempt for it and spoke with disgust
of the "temper of the Legislature & the wayward course of its
proceedings."[636] Indeed, the entire government of the State was an
absurd medley of changing purposes and inefficiency. "Nothing," wrote
Madison to Jefferson, "can exceed the confusion which reigns throughout
our Revenue department.... This confusion indeed runs through all of our
public affairs, and must continue as long as the present mode of
legislating continues"; the method of drawing bills "must soon bring our
laws and our Legislature into contempt among all orders of
Citizens."[637]

Nor did Virginia's lawmakers improve for several years. Madison in 1787
advised Washington that "The proceedings of the Assembly are, as usual,
rapidly degenerating with the progress of the session."[638] And the
irritated soldier at Mount Vernon responded with characteristic heat
that "Our Assembly has been ... employed ... chiefly in rectifying some
of the mistakes of the last, and committing new ones for emendations at
the next."[639] Washington, writing to Lafayette of American affairs in
1788, said, with disgust, that "Virginia in the very last session ...
was about to pass some of the most extravagant and preposterous
edicts ... that ever stained the leaves of a legislative code."[640]

Popular as he was with the members of the Legislature, Marshall shared
Madison's opinion of their temper and conduct. Of the fall session of
the Assembly of 1783, he writes to Colonel Levin Powell: "This long
session has not produced a single bill of Public importance except that
for the readmission of Commutables.[641] ... It ought to be perfect as
it has twice passed the House. It fell the first time (after an
immensity of labor and debate) a sacrifice to the difference of opinion
subsisting in the House of Delegates and the Senate with respect to a
money bill. A bill for the regulation of elections and inforcing the
attendance of members is now on the Carpet and will probably
pass.[642]... It is surprising that Gentlemen of character cannot
dismiss their private animosities, but will bring them in the
Assembly."[643]

Early in the session Marshall in a letter to Monroe describes the
leading members and the work of the House.

"The Commutable bill,"[644] writes he, "has at length pass'd and with
it a suspension of the collections of taxes till the first of January
next.... Colo. Harry Lee of the Legionary corps" is to take the place of
"Col^o. R. H. Lee" whose "services are lost to the Assembly forever";
and Marshall does not know "whether the public will be injur'd by the
change." Since the passage of the "Commutable bill ... the attention of
the house has been so fix'd on the Citizen bill that they have scarcely
thought on any other subject.... Col. [George] Nicholas (politician not
fam'd for hitting a medium) introduced one admitting into this country
every species of Men except Natives who had borne arms against the
state.... Mr. Jones introduc'd by way of amendment, one totally new and
totally opposite to that which was the subject of deliberation. He spoke
with his usual sound sense and solid reason. Mr. Henry opposed him.

"The Speaker replied with some degree of acrimony and Henry retorted
with a good deal of tartness but with much temper; 'tis his peculiar
excellence when he altercates to appear to be drawn unwillingly into the
contest and to throw in the eyes of others the whole blame on his
adversary. His influence is immense."[645]

Marshall's strange power of personality which, in after years, was so
determining an influence on the destiny of the country, together with
the combined influence of his father and of the State Treasurer,
Jacquelin Ambler, Marshall's father-in-law, now secured for the youthful
legislator an unusual honor. Eleven days after the House of Delegates
had organized, Marshall was elected by joint ballot of the Senate and
the House a member of the Council of State,[646] commonly called the
Executive Council. The Journal of the Council for November 20, 1782,
records: "John Marshall esquire having been elected a Member of the
Privy Council or Council of State in the room of John Bannister esquire
who hath resigned and producing a Certificate from under the hand of
Jaq. Ambler esq^r of his having qualified according to law; he took his
seat at the board."[647]

Marshall had just turned his twenty-seventh year, and the Council of
State was supposed to be made up of men of riper years and experience.
Older men, and especially the judges of the courts, resented the
bestowal of this distinction upon so youthful a member serving his first
term. Edmund Pendleton, Judge of the High Court of Chancery and
President of the Court of Appeals, wrote to Madison that: "Young Mr.
Marshall is elected a Councillor.... He is clever, but I think too
young for that department, which he should rather have earned as a
retirement and reward, by ten or twelve years hard service in the
Assembly."[648]

The Council consisted of eight members elected by the Legislature either
from the delegates or from the people at large. It was the Governor's
official cabinet and a constitutional part of the executive power. The
Governor consulted the Council on all important matters coming before
him; and he appointed various important officers only upon its
advice.[649]

The Constitution of Virginia of 1776 was the basis upon which was built
one of the most perfect political machines ever constructed; and this
machine in later years came to be Marshall's great antagonist. As a
member of the Council of State, Marshall learned by actual experience
the possible workings of this mechanism, first run by Patrick Henry,
perfected by Thomas Jefferson, and finally developed to its ultimate
efficiency by Spencer Roane and Thomas Ritchie.[650] Thus Marshall took
part in the appointment of surveyors, justices of the peace, tobacco
inspectors, and other officers;[651] and passed on requisitions from
other States for the delivery of fugitive criminals.[652]

[Illustration: MARSHALL'S SIGNATURE AS A MEMBER OF THE COUNCIL OF
STATE, 1784]

[Illustration: MARSHALL'S SIGNATURE IN 1797]

[Illustration: SIGNATURE OF THOMAS MARSHALL AS COLONEL OF THE 3D
VIRGINIA REGIMENT]

Marshall's signature to the minutes of the Council is totally unlike
that of his more mature years, as, indeed, is the chirography of his
letters of that period. He signed the Council records in large and
dashing hand with flourishes--it is the handwriting of a confident,
care-free, rollicking young man with a tinge of the dare-devil in him.
These signatures are so strangely dissimilar to his later ones that they
deserve particular attention. They denote Marshall's sense of his own
importance and his certainty of his present position and future
prospects.

The criticisms from the judges--first expressed by Pendleton, before
whom Marshall was trying to practice law--of his membership of the
Executive Council continued. Because of these objections, Marshall
finally resigned and at once sought another election from his native
county to the House of Delegates. The accepted version of this incident
is that Marshall resigned from the Executive Council because the duties
of that position took too much time from his profession; and that,
without his request or desire, his old neighbors in Fauquier, from
"their natural pride in connecting his rising name with their county,
spontaneously elected him to the Legislature."[653]

Thus does greatness, once achieved, throw upon a past career a glory
that dazzles the historian's eye; and the early steps of advancement are
seen and described as unasked and unwished honors paid by a discerning
public to modest and retiring merit. Thus, too, research and fact are
ever in collision with fancy and legend. The cherished story about
Marshall's resignation from the Council and "spontaneous" election to
the Legislature from his home county is a myth. The discontent of the
judges practically forced him out of the Council and he personally
sought another election from Fauquier County to the House of Delegates.
Marshall himself gives the true account of these important incidents.

"I am no longer a member of the Executive [Council]," Marshall informs
his friend James Monroe, "the opinion of the Judges with regard to a
Councillor's standing at the bar determined me to retire from the
Council board. Every person is now busied about the ensuing election."
Certainly Marshall was thus occupied; for he writes Monroe that "I had
made a small excursion into Fauquier to enquire into the probability of
my being chosen by the people, should I offer as a candidate at the next
election." Marshall tells the political news, in which he shows minute
information, and finally advises Monroe that "I have been maneuvering
amazingly to turn your warrants into cash if I succeed I shall think
myself a first rate speculator."[654]

Marshall's personal attention[655] to his candidacy bore fruit; and for
the second time he was chosen as Delegate from Fauquier, although he now
lived in Henrico County.[656]

[Illustration: FIRST PAGE OF A LETTER FROM MARSHALL TO JAMES MONROE
(_Facsimile_)]

When the Legislature convened, nine days again passed before enough
members were in Richmond to make up a House.[657] Marshall was among the
tardy. On May 13, the sergeant-at-arms was ordered to take him and other
members into custody; and later in the day he and four others were
brought in by that officer and "admitted to their seats on paying
fees."[658]

He was at once appointed to his old place on the Committee for Courts of
Justice and upon the immensely important Standing Committee on
Propositions and Grievances, to which was referred the flood of
petitions of soldiers and officers, the shower of applications of
counties and towns for various laws and other matters of pressing local
and personal concern in every part of Virginia.[659] To the cases of his
old comrades in arms who applied to the Legislature for relief, Marshall
was particularly attentive.[660] He became the champion of the
Revolutionary veterans, most of whom were very poor men.[661]

Upon Washington's suggestion a bill was brought in for the relief of
Thomas Paine by vesting in him a moderate tract of public lands. Upon
the third reading it was "committed to a committee of the whole house"
and there debated. Marshall, who apparently led the fight for Paine,
"read in his place" several amendments. But notwithstanding Washington's
plea, the immense services of Paine to the American cause during the
Revolution, and the amendments which, obviously, met all objections, the
bill was defeated.[662]

Numerous things of human interest happened during this session which
show the character of the Legislature and the state of the people. An
Englishman named Williamson[663] had gone to Essex County a year before
by permission of the Governor, but in violation of the law against
British refugees. When he refused to leave, the people tarred and
feathered him and drove him out of the country in this condition.[664]
The Attorney-General began prosecutions against the leaders of the
mob; and the offending ones petitioned the Legislature to interfere.
The petition was referred to the Committee on Propositions and
Grievances[665] of which Marshall was a member. This committee reported
that the petition ought to be granted "and that all irregularities
committed by any citizen of this state on the person or properties
of refugees previous to the ratification of the definitive treaty
of peace ... should be indemnified by law and buried in utter
oblivion."[666] But when the bill came to a vote, it was defeated.[667]

It was reported to the House that a certain John Warden had insulted its
dignity by saying publicly that if the House had voted against paying
the British debts, some of its members had voted against paying for the
coats on their backs--a charge which was offensively true. The Committee
on Privileges and Elections was instructed to take this serious matter
up and order the offender before it. He admitted the indiscretion and
apologized for it. The committee read Warden's written acknowledgment
and apology before the House and thus he was purged of the contempt of
that sensitive body.[668]

A William Finnie, who had been deputy quartermaster in the military
service, had purchased, at the request of the Board of War, a large
quantity of boots for a corps of cavalry in active service and then on
the march. Although the seller of the boots knew that they were bought
for the public service, he sued Finnie and secured judgment against him,
which was on the point of being executed. Finnie petitioned the
Legislature that the debt be paid by the State. The Committee on
Propositions and Grievances took charge of this petition, reported the
facts to be as Finnie had stated them, and recommended that the debt
"ought to be paid him by the public and charged to the United
States."[669] But the House rejected the resolution. Incidents like
these, as well as the action of the Legislature and the conduct of the
people themselves, had their influence on the radical change which
occurred in Marshall's opinions and point of view during the decade
after the war.

Marshall was appointed on many special committees to prepare sundry
bills during this session. Among these was a committee to frame a bill
to compel payment by those counties that had failed to furnish their
part of the money for recruiting Virginia's quota of troops to serve in
the Continental army. This bill was passed.[670]

A vote which gives us the first sight of Marshall's idea about changing
a constitution was taken during this session. Augusta County had
petitioned the Legislature to alter Virginia's fundamental law. The
committee reported a resolution against it, "such a measure not being
within the province of the House of Delegates to assume; but on the
contrary, it is the express duty of the representatives of the people at
all times, and on all occasions, to preserve the same [the Constitution]
inviolable, until a majority of all the people shall direct a reform
thereof."[671]

Marshall voted to amend this resolution by striking out the words
quoted. Thus, as far as this vote indicates, we see him standing for the
proposition that a form of government could be changed by convention,
which was the easiest, and, indeed, at that time the only practicable,
method of altering the constitution of the State. Madison also favored
this plan, but did nothing because of Patrick Henry's violent
opposition. The subject was debated for two days and the project of a
convention with full powers to make a new Constitution was
overwhelmingly defeated, although nearly all of the "young men of
education & talents" were for it.[672]

A few of the bills that Marshall voted for or reported from committee
are worthy of note, in addition to those which had to do with those
serious questions of general and permanent historic consequence to the
country presently to be considered. They are important in studying the
development of Marshall's economic and governmental views.

In 1784, Washington brought vividly before the Virginia Legislature the
necessity of improving the means of transportation.[673] At the same
time this subject was also taken up by the Legislature of Maryland. A
law was passed by the Virginia Legislature for "opening and extending
the navigation of the Potowmack river from tidewater to the highest
place practicable on the north branch"; and Maryland took similar
action. These identical laws authorized the forming of a corporation
called the "Potowmack Company" with a quarter of a million dollars
capital. It was given the power of eminent domain; was authorized to
charge tolls "at all times forever hereafter"; and the property and
profits were vested in the shareholders, "their heirs and assigns
forever."[674]

John Marshall voted for this bill, which passed without opposition.[675]
He became a stockholder in the corporation and paid several assessments
on his stock.[676] Thus early did Marshall's ideas on the nature of a
legislative franchise to a corporation acquire the vitality of property
interest and personal experience.

Marshall was on the Committee for Courts of Justice during every session
when he was a member of the House and worked upon several bills
concerning the courts. On November 2, 1787, he was appointed upon a
special committee to bring in a bill "to amend the act establishing the
High Court of Chancery."[677] Three weeks later he reported this bill
to the House;[678] and when the bill passed that body it was "ordered
that Mr. Marshall do carry the bill to the Senate and desire their
concurrence." The committee which drew this bill was made up from among
the ablest men in the House: Henry, Mason, Nicholas, Matthews, Stuart,
and Monroe being the other members,[679] with Marshall who was chairman.

The act simplified and expedited proceedings in equity.[680] The High
Court of Chancery had been established by an act of the Virginia
Legislature of 1777.[681] This law was the work of Thomas Jefferson. It
contained one of the reforms so dear to his heart during that
period--the right of trial by jury to ascertain the facts in equity
causes. But six years' experience proved that the reform was not
practical. In 1783 the jury trial in equity was abolished, and the old
method that prevailed in the courts of chancery before the Revolution
was reinstated.[682] With this exception the original act stood in
Virginia as a model of Jeffersonian reforms in legal procedure; but
under its provisions, insufferable delays had grown up which defeated
the ends of justice.[683] It was to remedy this practical defect of
Jefferson's monumental law that Marshall brought in the bill of 1787.

But the great matters which came before the Legislature during this
period, between the ending of the war and the adoption of the
Constitution, were: The vexed question of the debts owed by Virginia
planters to British subjects; the utter impotence of the so-called
Federal Government and the difficulty of getting the States to give it
any means or authority to discharge the National debts and uphold the
National honor; and the religious controversy involving, at bottom, the
question of equal rights for all sects.[684]

The religious warfare[685] did not greatly appeal to Marshall, it would
seem, although it was of the gravest importance. Bad as the state of
religion was at the beginning of the Revolution, it was worse after that
struggle had ended. "We are now to rank among the nations of the world,"
wrote Mason to Henry in 1783; "but whether our independence shall prove
a blessing or a curse must depend upon our wisdom or folly, virtue or
wickedness.... The prospect is not promising.... A depravity of manners
and morals prevails among us, to the destruction of all confidence
between man and man."[686] The want of public worship "increases daily;
nor have we left in our extensive State three churches that are
decently supported," wrote Mrs. Carrington, the sister of John
Marshall's wife, a few years later.[687]

Travelers through Virginia during this period note that church buildings
of all denominations were poor and mean and that most of these were
falling into ruins; while ministers barely managed to keep body and soul
together by such scanty mites as the few pious happened to give them or
by the miserable wages they earned from physical labor.[688] These
scattered and decaying little church houses, the preachers toiling with
axe or hoe, formed, it appears, an accurate index of the religious
indifference of the people.[689]

There were gross inequalities of religious privileges. Episcopal
clergymen could perform marriage ceremonies anywhere, but ministers of
the other denominations could do so only in the county where they lived.
The property of the Episcopal Church came from the pockets of all the
people; and the vestries could tax members of other churches as well as
their own for the relief of the poor.[690] It was a curious swirl of
conflicting currents. Out of it came the proposition to levy an
assessment on everybody for the support of religion; a bill to
incorporate the Episcopal Church which took away its general powers of
vestry taxation, but confirmed the title to the property already held;
and the marriage law which gave ministers of all denominations equal
authority.[691]

Although these propositions were debated at great length and with much
spirit and many votes were taken at various stages of the contest,
Marshall recorded his vote but twice. He did not vote on the resolution
to incorporate the Episcopal Church;[692] or to sell the glebe
lands;[693] nor did he vote on the marriage bill.[694] He voted against
Madison's motion to postpone consideration of the bill for a general
assessment to support religion, which carried,[695] thus killing the
bill. When the bill to incorporate the Episcopal Church came to a final
vote, Marshall voted "aye," as, indeed, did Madison.[696]

But if Marshall took only a languid interest in the religious struggle,
he was keen-eyed and active on the other two vital matters--the payment
of debts, both public and private, and the arming of the Federal
Government with powers necessary to its existence. Throughout this whole
period we see the rapid and solid growth of the idea of Nationality, the
seeds of which had been planted in John Marshall's soul by the fingers
of military necessity and danger. Here, too, may be found the beginning
of those ideas of contract which developed throughout his life and
hardened as they developed until finally they became as flint. And here
also one detects the first signs of the change in what Marshall himself
called "the wild and enthusiastic notions"[697] with which, only a few
years earlier, he had marched forth from the backwoods, to fight for
independence and popular government.

Virginia planters owed an immense amount of money to British merchants.
It had been the free-and-easy habit of Virginians to order whatever they
wanted from England and pay for it in the produce of their fields,
chiefly tobacco. The English merchants gave long credit and were always
willing to extend it when the debt fell due. The Virginians, on their
part, found the giving of new notes a convenient way of canceling old
obligations and thus piled up mountains of debt which they found hard to
remove. After the war was over, they had little means with which to
discharge their long overdue accounts.[698]

During the Revolution stringent and radical laws were passed, preventing
the recovery of these debts in the courts, sequestering the property and
even forfeiting the estates owned by British subjects in Virginia; and a
maze of acts, repealing and then reviving the statutes that prevented
payment, were passed after the war had ended.[699] The Treaty between
the United States and Great Britain provided as one of the conditions of
peace that all these legal impediments to the recovery of British debts
should be removed.[700] Failure to repeal the anti-debt legislation
passed during the war was, of course, a plain infraction of this
contract between the two countries; while the enactment of similar laws
after the Treaty had become binding, openly and aggressively violated
it.

Within two weeks after Marshall took his seat in the House in 1784, this
sorely vexed question came up. A resolution was brought in "that so much
of all and every act or acts of the Assembly, now in force in this
commonwealth as prevents a due compliance with the stipulation contained
in the definitive Treaty of Peace entered into between Great Britain
and America ought to be repealed"; but a motion to put the question to
agree with this resolution was defeated by a majority of twenty. John
Marshall voted to put the question.[701]

Those resisting the effort to carry out the Treaty of Peace declared
that Great Britain itself had not complied with it, because the British
had not surrendered the American posts retained by them at the close of
the war and had not returned or paid for the slaves carried away by the
British forces.[702] A fortnight after the first defeat of the movement
against the anti-debt law, a resolution was laid before the House
instructing Virginia's Representatives in Congress to request that body
to protest to the British Government against this infraction of the
Treaty and to secure reparation therefor, and stating that the Virginia
Legislature would not cooperate "in the complete fulfillment of said
treaty" until this was done. The intent of the resolution was that no
British debts should be paid for a long time to come.

But the resolution did provide that, when this reparation was made, or
when "Congress shall adjudge it indispensably necessary," the anti-debt
laws "ought to be repealed and payment made to all [creditors] in such
time and manner as shall consist with the exhausted situation of this
Commonwealth"; and that "the further operation of all and every act or
acts of the Assembly concerning escheats and forfeitures from British
subjects ought to be prevented."[703] An amendment was offered
containing the idea that the debtors might deduct their losses from
their debts, thus taking a little step toward payment. Another amendment
to strengthen this was also proposed.

Had these amendments carried, the policy of an early payment of the
British debts would have prevailed. Marshall voted for both as did
Madison. The amendments, however, were overwhelmingly defeated.[704] The
situation and point of view of the British merchants to whom these debts
were due and who, depending upon the faithful performance of the Treaty,
had come to Virginia to collect the money owing them, is illustrated by
a petition which George F. Norton presented to the House. He was a
member of the mercantile firm of Norton and Sons, of London, from whom
Virginians had made purchases on credit for a generation before the war.
He declared that his firm had "been compelled to pay many debts due from
the said company, but he has been unable to collect any due to them, in
consequence of the laws prohibiting recovery of British debts, by which
he has been reduced to the greatest extremes."[705]

After the summer adjournment the irrepressible conflict between keeping
or breaking the National faith once more arose. Henry, who was the
champion of the debtors, had been elected Governor and was "_out of the
way_."[706] Several British merchants had proposed to accept payments of
their debts in installments. Ratifications of the Treaty had been
exchanged. The friends of National honor and private good faith had
gathered headway. Finally a bill passed the House repealing the
anti-debt laws. The Senate and the House came to an agreement.

Here arose a situation which pictures the danger and difficulty of
travel in that day. Before the bill had been sent back to the House,
enrolled, examined, and signed by both presiding officers, several
members went across the river to spend the night at the neighboring
hamlet of Manchester. It was the day before adjournment and they
expected to return the next morning. But that night the river froze[707]
and they could not get back. So this important measure fell through for
the session.[708]

No "ayes" and "noes" were called for during this final battle, but
Marshall probably took part in the debate and it is certain that he used
the influence which his popularity among members gave him for the
passage of this law.

"I wish with you," wrote Marshall to Monroe, in early December, "that
our Assembly had never passed those resolutions respecting the British
Debts which have been so much the subject of reprehension throughout the
States. I wish it because it affords a pretext to the British to retain
possession of the posts on the lakes but much more because I ever
considered it as a measure tending to weaken the federal bands which in
my conception are too weak already. We are about, tho reluctantly, to
correct the error."

Marshall despondently summed up the work of the session: "We have as yet
done nothing finally. Not a bill of public importance, in which an
individual was not particularly interested, has passed."[709]

Marshall was not a candidate for the Legislature in 1785-86, but sought
and secured election in 1787, when he was sent from Henrico County,
where Richmond was situated. During this hiatus in Marshall's public
life another effort was made to repeal the anti-debt laws, but so bitter
was the resistance that nothing was accomplished. Madison was
distressed.[710] When Marshall again became a member of the General
Assembly the question of the British debts was brought forward once
more. This time the long-delayed bill was passed, though not until its
foes had made their point about the runaway slaves and the unevacuated
posts.[711]

A resolution was brought in that the anti-debt laws "ought to be
repealed," but that any act for this purpose should be suspended until
the other States had passed similar laws. An amendment was defeated for
making the suspension until Great Britain complied with the Treaty. John
Marshall voted against it, as did his father Thomas Marshall, who was
now a member of the Virginia Legislature from the District of
Kentucky.[712] Another amendment to pay the British debts "in such time
and manner as shall consist with the exhausted situation of this
Commonwealth" met a similar fate, both Marshalls, father and son, voting
against it.[713] The resolution was then passed, the two Marshalls
voting for it.[714]

Marshall was then appointed a member of the special committee to prepare
and bring in a bill to carry out the resolution.[715] In a few days this
bill was laid before the House. Except the extension clause, this bill
was probably drawn by Marshall. It was short and to the point. It
repealed everything on the statute books repugnant to the Treaty of
Peace. It specifically "directed and required" the courts to decide all
cases "arising from or touching said treaty" "according to the tenor,
true intent, and meaning of same" regardless of the repealed laws. But
the operation of the law was suspended until Congress informed the
Governor "that the other states in the Union have passed laws enabling
British creditors to recover their debts agreeably to the terms of the
treaty."[716] The bill was emphasized by a brief preamble which stated
that "it is agreed by the fourth article of the treaty of peace with
Great Britain that creditors on either side shall meet with no lawful
impediment to the recovery of the full value in sterling money, of all
bona fide debts heretofore contracted."

The opponents of the bill tried to emasculate it by an amendment that
the law should not go into effect until the Governor of Virginia made
public proclamation "that Great Britain hath delivered up to the United
States the posts therein now occupied by British troops" and was taking
measures to return the runaway slaves or to pay for them. They
succeeded. Whether from agitation outside the legislative hall[717] or
from the oratory of Patrick Henry, or from a greater power of the
leaders in lobbying among their fellow members, a quick and radical
transformation of sentiment took place. Probably all these causes joined
to produce it. By a crushing majority of forty-nine the amendment was
adopted and the bill denatured. Both John Marshall and his father voted
against the amendment, as did George Mason, Benjamin Harrison, and James
Monroe.[718]

Thus, in two weeks, a majority of thirty-three against this very scheme
for breaking the force of the bill was changed to a majority of
forty-nine in favor of it. The bill as amended passed the next day.[719]
Such were the instability of the Virginia Legislature at this period and
the people's bitter opposition to the payment of the debts owed to
British subjects.

The effect on Marshall's mind was very great. The popular readiness to
escape, if not to repudiate, contracted obligations, together with the
whimsical capriciousness of the General Assembly, created grave
misgivings in his mind. His youthful sympathy with the people was
beginning to disappear. Just as the roots of his Nationalist views run
back to Valley Forge, so do the roots of his economic-political opinions
penetrate to the room in the small frame building where sat the
Legislature of Virginia in the first years that followed the close of
the war.

But the mockery of government exhibited by the Federal establishment at
this period of chaos impressed Marshall even more than the spirit of
repudiation of debts and breaking of contracts which was back of the
anti-debt legislation.[720] The want of the National power during the
Revolution, which Marshall had seen from the "lights ... which glanced
from the point of his sword,"[721] he now saw through the tobacco smoke
which filled the grimy room where the Legislature of Virginia passed
laws and repealed them almost at the same time.[722] The so-called
Federal Government was worse than no government at all; it was a form
and a name without life or power. It could not provide a shilling for
the payment of the National debt nor even for its own support. It must
humbly ask the States for every dollar needed to uphold the National
honor, every penny necessary for the very existence of the masquerade
"Government" itself. This money the States were slow and loath to give
and doled it out in miserable pittances.

Even worse, there was as yet little conception of Nationality among the
people--the spirit of unity was far weaker than when resistance to Great
Britain compelled some kind of solidarity; the idea of cooperation was
even less robust than it was when fear of French and Indian depredations
forced the colonists to a sort of common action. Also, as we shall see,
a general dislike if not hostility toward all government whether State
or National was prevalent.[723]

As to the National Government, it would appear that, even before the war
was over, the first impulse of the people was to stop entirely the
feeble heart that, once in a while, trembled within its frail bosom: in
1782, for instance, Virginia's Legislature repealed the law passed in
May of the preceding year authorizing Congress to levy a duty on imports
to carry on the war, because "the permitting any power other than the
general assembly of this commonwealth, to levy duties or taxes upon the
citizens of this state within the same, is injurious to its sovereignty"
and "may prove destructive of the rights and liberty of the
people."[724]

A year later the Legislature was persuaded again to authorize Congress
to levy this duty;[725] but once more suspended the act until the other
States had passed "laws" of the same kind and with a proviso which would
practically have nullified the working of the statute, even if the
latter ever did go into effect.[726] At the time this misshapen dwarf of
a Nationalist law was begotten by the Virginia Legislature, Marshall was
a member of the Council of State; but the violent struggle required to
get the Assembly to pass even so puny an act as this went on under his
personal observation.

When Marshall entered the Legislature for the second time, the general
subject of the debts of the Confederation arose. Congress thought that
the money to pay the loans from foreign Governments by which the war had
been carried on, might be secured more easily by a new mode of
apportioning their quotas among the thirteen States. The Articles of
Confederation provided that the States should pay on the basis of the
value of lands. This worked badly, and Congress asked the States to
alter the eighth Article of Confederation so as to make the States
contribute to the general treasury on a basis of population. For fear
that the States would not make this change, Congress also humbly
petitioned the thirteen "sovereignties" to ascertain the quantity and
value of land as well as the number of people in each State.

On May 19, 1784,[727] after the usual debating, a strong set of
Nationalist resolutions was laid before the Virginia House of Delegates.
They agreed to the request of Congress to change the basis of
apportioning the debt among the States; favored providing for the
payment of a part of what each State owed Congress on the requisition of
three years before; and even went so far as to admit that if the States
did not act, Congress itself might be justified in proceeding. The last
resolution proposed to give Congress the power to pass retaliatory trade
laws.[728] These resolutions were adopted with the exception of one
providing for the two years' overdue payment of the Virginia share of
the requisition of Congress made in 1781.

Marshall was appointed a member of a special committee to "prepare and
bring in bills" to carry out the two resolutions for changing the basis
of apportionment from land to population, and for authorizing Congress
to pass retaliatory trade laws. George Mason and Patrick Henry also were
members of this committee on which the enemies of the National idea had
a good representation. Two weeks later the bills were reported.[729]
Three weeks afterwards the retaliatory trade bill was passed.[730] But
all the skill and ability of Madison, all the influence of Marshall with
his fellow members, could not overcome the sentiment against paying the
debts; and, as usual, the law was neutralized by a provision that it
should be suspended until all the other States had enacted the same kind
of legislation.

The second contest waged by the friends of the Nationalist idea in which
Marshall took part was over the extradition bill which the Legislature
enacted in the winter of 1784. The circumstances making such a law so
necessary that the Virginia Legislature actually passed it, draw back
for a moment the curtain and give us a view of the character of our
frontiersmen. Daring, fearless, strong, and resourceful, they struck
without the sanction of the law. The object immediately before their
eyes, the purpose of the present, the impulse or passion of the
moment--these made up the practical code which governed their actions.

Treaties of the American "Government" with the Governments of other
countries were, to these wilderness subduers, vague and far-away
engagements which surely never were meant to affect those on the
outskirts of civilization; and most certainly could not reach the
scattered dwellers in the depths of the distant forests, even if such
international compacts were intended to include them. As for the
Government's treaties or agreements of any kind with the Indian tribes,
they, of course, amounted to nothing in the opinion of the frontiersmen.
Who were the Indians, anyway, except a kind of wild animal very much in
the frontiersman's way and to be exterminated like other savage beasts?
Were not the Indians the natural foes of these white Lords of the
earth?[731]

Indeed, it is more than likely that most of this advance guard of the
westward-marching American people never had heard of such treaties until
the Government's puny attempt to enforce them. At any rate, the settlers
fell afoul of all who stood in their way; and, in the falling, spared
not their hand. Madison declared that there was "danger of our being
speedily embroiled with the nations contiguous to the U. States,
particularly the Spaniards, by the licentious & predatory spirit of some
of our Western people. In several instances, gross outrages are said to
have been already practiced."[732] Jay, then Secretary of State,
mournfully wrote to Jefferson in Paris, that "Indians have been murdered
by our people in cold blood, and no satisfaction given; nor are they
pleased with the avidity with which we seek to acquire their lands."

Expressing the common opinion of the wisest and best men of the country,
who, with Madison, were horrified by the ruthless and unprovoked
violence of the frontiersmen, Jay feared that "to pitch our tents
through the wilderness in a great variety of places, far distant from
each other," might "fill the wilderness with white savages ... more
formidable to us than the tawny ones which now inhabit it." No wonder
those who were striving to found a civilized nation had "reason ... to
apprehend an Indian war."[733]

To correct this state of things and to bring home to these sons of
individualism the law of nations and our treaties with other countries,
Madison, in the autumn of 1784, brought in a bill which provided that
Virginia should deliver up to foreign Governments such offenders as had
come within the borders of the Commonwealth. The bill also provided for
the trial and punishment by Virginia courts of any Virginia citizen who
should commit certain crimes in "the territory of any Christian nation
or Indian tribe in amity with the United States." The law is of general
historic importance because it was among the first, if not indeed the
very first, ever passed by any legislative body against
filibustering.[734]

The feebleness of the National idea at this time; the grotesque notions
of individual "rights"; the weakness or absence of the sense of civic
duty; the general feeling that everybody should do as he pleased; the
scorn for the principle that other nations and especially Indian tribes
had any rights which the rough-and-ready settlers were bound to respect,
are shown in the hot fight made against Madison's wise and moderate
bill. Viewed as a matter of the welfare and safety of the frontiersmen
themselves, Madison's measure was prudent and desirable; for, if either
the Indians or the Spaniards had been goaded into striking back by
formal war, the blows would have fallen first and heaviest on these very
settlers.

Yet the bill was stoutly resisted. It was said that the measure, instead
of carrying out international law, violated it because "such surrenders
were unknown to the law of nations."[735] And what became of Virginia's
sacred Bill of Rights, if such a law as Madison proposed should be
placed on the statute books, exclaimed the friends of the predatory
backwoodsmen? Did not the Bill of Rights guarantee to every person
"speedy trial by an impartial jury of twelve men of his vicinage," where
he must "be confronted with the accusers and witnesses," said they?

But what did this Nationalist extradition bill do? It actually provided
that men on Virginia soil should be delivered up for punishment to a
foreign nation which knew not the divine right of trial by jury. As for
trying men in Virginia courts and before Virginia juries for something
they had done in the fastnesses of the far-away forests of the West and
South, as Madison's bill required, how could the accused "call for
evidence in his favor"? And was not this "sacred right" one of the
foundation stones, quarried from Magna Charta, on which Virginia's
"liberties" had been built?[736] To be sure it was! Yet here was James
Madison trying to blast it to fragments with his Nationalism!

So ran the arguments of those early American advocates of
_laissez-faire_. Madison answered, as to the law of nations, by quoting
Vattel, Grotius, and Puffendorf. As to the Bill of Rights, he pointed
out that the individualist idealism by which the champions of the
settlers interpreted this instrument "would amount to a license for
every aggression, and would sacrifice the peace of the whole community
to the impunity of the worst members of it."[737] Such were the
conservative opinions of James Madison three years before he helped to
frame the National Constitution.

Madison saw, too,--shocking treason to "liberty,"--"the necessity of a
qualified interpretation of the bill of rights,"[738] if we were to
maintain the slightest pretense of a National Government of any kind.
The debate lasted several days.[739] With all the weight of argument,
justice, and even common prudence on the side of the measure, it
certainly would have failed had not Patrick Henry come to the rescue of
it with all the strength of his influence and oratory.[740]

The bill was so mangled in committee that it was made useless and it was
restored only by amendment. Yet such was the opposition to it that even
with Henry's powerful aid this was done only by the dangerous margin of
four votes out of a total of seventy-eight.[741] The enemies of the bill
mustered their strength overnight and, when the final vote came upon its
passage the next morning, came so near defeating it that it passed by a
majority of only one vote out of a total of eighty-seven.[742]

John Marshall, of course, voted for it. While there is no record that he
took part in the debate, yet it is plain that the contest strengthened
his fast-growing Nationalist views. The extravagance of those who saw in
the Bill of Rights only a hazy "liberty" which hid evil-doers from the
law, and which caused even the cautious Madison to favor a "qualified
interpretation" of that instrument, made a lasting impression on
Marshall's mind.

But Marshall's support was not wholly influenced by the prudence and
Nationalism of the measure. He wished to protect the Indians from the
frontiersmen. He believed, with Henry, in encouraging friendly relations
with them, even by white and red amalgamation. He earnestly supported
Henry's bill for subsidizing marriages of natives and whites[743] and
was disappointed by its defeat.

"We have rejected some bills," writes Marshall, "which in my conception
would have been advantageous to the country. Among these, I rank the
bill for encouraging intermarriages with the Indians. Our prejudices
however, oppose themselves to our interests, and operate too powerfully
for them."[744]

During the period between 1784 and 1787 when Marshall was out of the
Legislature, the absolute need of a central Government that would enable
the American people to act as a Nation became ever more urgent; but the
dislike for such a Government also crystallized. The framing of the
Constitution by the Federal Convention at Philadelphia in 1787 never
could have been brought about by any abstract notions of National honor
and National power, nor by any of those high and rational ideas of
government which it has become traditional to ascribe as the only
source and cause of our fundamental law.

The people at large were in no frame of mind for any kind of government
that meant power, taxes, and the restrictions which accompany orderly
society. The determination of commercial and financial interests to get
some plan adopted under which business could be transacted, was the most
effective force that brought about the historic Convention at
Philadelphia in 1787. Indeed, when that body met it was authorized only
to amend the Articles of Confederation and chiefly as concerned the
National regulation of commerce.[745]

Virginia delayed acting upon the Constitution until most of the other
States had ratified it. The Old Dominion, which had led in the
Revolution, was one of the last Commonwealths to call her Convention to
consider the "new plan" of a National Government. The opposition to the
proposed fundamental law was, as we shall see, general and determined;
and the foes of the Constitution, fiercely resisting its ratification,
were striving to call a second general Convention to frame another
scheme of government or merely to amend the Articles of Confederation.

To help to put Virginia in line for the Constitution, John Marshall, for
the third time, sought election to the Legislature. His views about
government had now developed maturely into a broad, well-defined
Nationalism; and he did not need the spur of the wrathful words which
Washington had been flinging as far as he could against the existing
chaos and against everybody who opposed a strong National Government.

If Marshall had required such counsel and action from his old commander,
both were at hand; for in all his volcanic life that Vesuvius of a man
never poured forth such lava of appeal and denunciation as during the
period of his retirement at Mount Vernon after the war was over and
before the Constitution was adopted.[746]

But Marshall was as hot a Nationalist as Washington himself. He was
calmer in temperament, more moderate in language and method, than his
great leader; but he was just as determined, steady, and fearless. And
so, when he was elected to the Legislature in the early fall of 1787, he
had at heart and in mind but one great purpose. Army life, legislative
experience, and general observation had modified his youthful democratic
ideals, while strengthening and confirming that Nationalism taught him
from childhood. Marshall himself afterwards described his state of mind
at this period and the causes that produced it.

"When I recollect," said he, "the wild and enthusiastic notions with
which my political opinions of that day were tinctured, I am disposed to
ascribe my devotion to the Union and to a government competent to its
preservation, at least as much to casual circumstances as to judgment.
I had grown up at a time when the love of the Union, and the resistance
to the claims of Great Britain were the inseparable inmates of the same
bosom; when patriotism and a strong fellow-feeling with our suffering
fellow-citizens of Boston were identical; when the maxim, 'United we
stand, divided we fall,' was the maxim of every orthodox American.

"And I had imbibed these sentiments so thoroughly that they constituted
a part of my being. I carried them with me into the army, where I found
myself associated with brave men from different States, who were risking
life and everything valuable in a common cause, believed by all to be
most precious; and where I was confirmed in the habit of considering
America as my country, and Congress as my government.... My immediate
entrance into the State Legislature opened to my view the causes which
had been chiefly instrumental in augmenting those sufferings [of the
army]; and the general tendency of State politics convinced me that no
safe and permanent remedy could be found but in a more efficient and
better organized General Government."[747]

On the third day of the fall session of the Virginia Legislature of
1787, the debate began on the question of calling a State Convention to
ratify the proposed National Constitution.[748] On October 25 the debate
came to a head and a resolution for calling a State Convention passed
the House.[749] The debate was over the question as to whether the
proposed Convention should have authority either to ratify or reject the
proposed scheme of government entirely; or to accept it upon the
condition that it be altered and amended.

Francis Corbin, a youthful member from Middlesex, proposed a flat-footed
resolution that the State Convention be called either to accept or
reject the "new plan." He then opened the debate with a forthright
speech for a Convention to ratify the new Constitution as it stood.
Patrick Henry instantly was on his feet. He was for the Convention, he
said: "No man was more truly federal than himself." But, under Corbin's
resolution, the Convention could not propose amendments to the
Constitution. There were "errors and defects" in that paper, said Henry.
He proposed that Corbin's resolution should be changed so that the State
Convention might propose amendments[750] as a condition of ratification.

The debate waxed hot. George Nicholas, one of the ablest men in the
country, warmly attacked Henry's idea. It would, declared Nicholas,
"give the impression" that Virginia was not for the Constitution,
whereas "there was, he believed, a decided majority in its favor."
Henry's plan, said Nicholas, would throw cold water on the movement to
ratify the Constitution in States that had not yet acted.

George Mason made a fervid and effective speech for Henry's resolution.
This eminent, wealthy, and cultivated man had been a member of the
Philadelphia Convention that had framed the Constitution; but he had
refused to sign it. He was against it for the reasons which he
afterwards gave at great length in the Virginia Convention of 1788.[751]
He had "deeply and maturely weighed every article of the new
Constitution," avowed Mason, and if he had signed it, he "might have
been justly regarded as a traitor to my country. I would have lost this
hand before it should have marked my name to the new government."[752]

At this juncture, Marshall intervened with a compromise. The
Constitutionalists were uncertain whether they could carry through
Corbin's resolution. They feared that Henry's plan of proposing
amendments to the Constitution might pass the House. The effect of such
an Anti-Constitutional victory in Virginia, which was the largest and
most populous State in the Union, would be a blow to the cause of the
Constitution from which it surely could not recover. For the movement
was making headway in various States for a second Federal Convention
that should devise another system of government to take the place of the
one which the first Federal Convention, after much quarreling and
dissension, finally patched up in Philadelphia.[753]

So Marshall was against both Corbin's resolution and Henry's amendment
to it; and also he was for the ideas of each of these gentlemen. It was
plain, said Marshall, that Mr. Corbin's resolution was open to the
criticism made by Mr. Henry. To be sure, the Virginia Convention should
not be confined to a straight-out acceptance or rejection of the new
Constitution; but, on the other hand, it would never do for the word to
go out to the other States that Virginia in no event would accept the
Constitution unless she could propose amendments to it. He agreed with
Nicholas entirely on that point.

Marshall also pointed out that the people of Virginia ought not to be
given to understand that their own Legislature was against the proposed
Constitution before the people themselves had even elected a Convention
to pass upon that instrument. The whole question ought to go to the
people without prejudice; and so Marshall proposed a resolution of his
own "that a Convention should be called and that the new Constitution
should be laid before them for their free and ample discussion."[754]

Marshall's idea captured the House. It placated Henry, it pleased Mason;
and, of course, it was more than acceptable to Corbin and Nicholas, with
whom Marshall was working hand in glove, as, indeed, was the case with
all the Constitutionalists. In fact, Marshall's tactics appeared to let
every man have his own way and succeeded in getting the Convention
definitely called. And it did let the contending factions have their own
way for the time being; for, at that juncture, the friends of the new
National Constitution had no doubt that they would be able to carry it
through the State Convention unmarred by amendments, and its enemies
were equally certain that they would be able to defeat or alter it.

Marshall's resolution, therefore, passed the House "unanimously."[755]
Other resolutions to carry Marshall's resolution into effect also passed
without opposition, and it was "ordered that two hundred copies of these
resolutions be printed and dispersed by members of the general assembly
among their constituents; and that the Executive should send a copy of
them to Congress and to the Legislature and Executive of the respective
states."[756] But the third month of the session was half spent before
the Senate passed the bill.[757] Not until January 8 of the following
year did it become a law.[758]

In addition, however, to defining the privileges of the members and
providing money for its expenses, the bill also authorized the
Convention to send representatives "to any of the sister states or the
conventions thereof which may be then met," in order to gather the views
of the country "concerning the great and important change of government
which hath been proposed by the federal convention."[759] Thus the
advocates of a second general Convention to amend the Articles of
Confederation or frame another Constitution scored their point.

So ended the first skirmish of the historic battle soon to be fought out
in Virginia, which would determine whether the American people should
begin their career as a Nation. Just as John Marshall was among the
first in the field with rifle, tomahawk, and scalping-knife, to fight
for Independence, so, now, he was among those first in the field with
arguments, influence, and political activities, fighting for
Nationalism.


FOOTNOTES:

[614] Richmond grew rapidly thereafter. The number of houses was trebled
within a decade.

[615] Schoepf, ii, 55-56.

[616] Schoepf, ii, 55-56.

[617] _Ib._; and see Journals.

[618] _Ib._, ii, 57.

[619] Schoepf, 55-56.

[620] _Ib._, 58.

[621] Story, in Dillon, iii, 337. Marshall was a prime favorite of his
old comrades all his life. (_Ib._)

[622] Journal, H.D. (Oct. Sess., 1782), 3-10.

[623] The roads were so bad and few that traveling even on horseback was
not only toilsome but dangerous. (See _infra_, chap. VII.)

[624] Journal, H.D. (Oct. Sess., 1782), 4-8.

[625] Journal, H.D. (Oct. Sess., 1782.), 9-10.

[626] _Ib._, 10.

[627] _Ib._, 13-15.

[628] _Ib._, 15.

[629] _Ib._, 22; Hening, xi, 111. The "ayes" and "noes" were taken on
this bill and Marshall's vote is, of course, without any importance
except that it was his first and that it was a little straw showing his
kindly and tolerant disposition. Also the fact that the "ayes" and
"noes" were called for--something that was very rarely done--shows the
popular feeling against Englishmen.

[630] Journal, H.D. (Oct. Sess., 1782), 27-28. Marshall voted in favor
of bringing in a bill for strengthening the credit account; and against
postponing the consideration of the militia bill. (_Ib._, 45.)

[631] _Ib._, 23, 25, 27, 36, 42, 45.

[632] _Ib._, 23.

[633] Hening, xi, 173-75.

[634] Journal, H.D., 36.

[635] "It greatly behoves the Assembly to revise several of our laws,
and to abolish all such as are contrary to the fundamental principles of
justice; and by a strict adherence to the distinctions between Right and
Wrong for the future, to restore that confidence and reverence ... which
has been so greatly impaired by a contrary conduct; and without which
our laws can never be much more than a dead letter." (Mason to Henry,
May 6,1783, as quoted in Henry, ii, 185.)

[636] _Writings_: Hunt, ii, 397. This notable fact is worthy of
repetition if we are to get an accurate view of the Virginia Legislature
of that day. Yet that body contained many men of great ability.

[637] Madison to Jefferson, July 3,1784; _Writings_: Hunt, ii, 62.

[638] Madison to Washington, Dec. 14,1787; _ib._, v, 69-70.

[639] Washington to Madison, Jan. 10, 1788; _Writings_: Ford, xi, 208.

[640] Washington to Lafayette, April 28, 1788; _ib._, 254. Washington
wrote bitterly of State antagonism. "One State passes a prohibitory law
respecting some article, another State opens wide the avenue for its
admission. One Assembly makes a system, another Assembly unmakes it."
(_Ib._)

[641] Hening, xi, 299-306. This statement of Marshall's was grossly
incorrect. This session of the Legislature passed several laws of the
very greatest public consequence, such as the act to authorize Congress
to pass retaliatory trade laws against Great Britain (_ib._, 313); an
immigration and citizenship act (_ib._, 322-24); an act prohibiting
British refugees from coming to Virginia; and a quarantine act (_ib._,
29-31). It was this session that passed the famous act to authorize
Virginia's delegates in Congress to convey to the United States the
Northwest Territory (_ib._, 326-28).

This remarkable oversight of Marshall is hard to account for. An
explanation is that this was the year of his marriage; and the year also
in which he became a resident of Richmond, started in the practice of
the law there, and set up his own home. In addition to these absorbing
things, his duty as a member of the Council of State took his attention.
Also, of course, it was the year when peace with Great Britain was
declared. Still, these things do not excuse Marshall's strange
misstatement. Perhaps he underestimated the importance of the work done
at this particular session.

[642] Hening, xi, 387-88. This bill became a law at the spring session
of the following year. The impracticable part enforcing attendance of
members was dropped. The bill as passed imposes a penalty of fifty
pounds on any sheriff or other officer for failure to return
certificates of elections; a forfeit of two hundred pounds upon any
sheriff interfering in any election or showing any partiality toward
candidates.

[643] Marshall to Powell, Dec. 9, 1783; _Branch Historical Papers_, i,
130-31.

[644] An act allowing one half of the taxes to be paid in tobacco, hemp,
flour, or deerskins, and suspending distress for taxes until January,
1784. (Hening, xi, 289.) The scarcity of specie was so great and the
people so poor that the collection of taxes was extremely difficult. In
1782 the partial payment of taxes in commutables--tobacco, hemp, flour,
or deerskins--was introduced. This occasioned such loss to the treasury
that in May, 1783, the Commutable Acts were repealed; but within five
months the Legislature reversed itself again and passed the Commutable
Bill which so disgusted Marshall.

[645] Marshall to Monroe, Dec. 12, 1783; MS., Draper Collection,
Wisconsin Historical Society; also printed in _Amer. Hist. Rev._, iii,
673. This letter is not addressed, but it has been assumed that it was
written to Thomas Jefferson. This is incorrect; it was written to James
Monroe.

[646] Journal, H.D. (Oct. Sess., 1782), 27. It is almost certain that
his father and Jacquelin Ambler were pushing him. The Speaker and other
prominent members of the House had been colleagues of Thomas Marshall in
the House of Burgesses and Ambler was popular with everybody. Still,
Marshall's personality must have had much to do with this notable
advancement. His membership in the Council cannot be overestimated in
considering his great conflict with the Virginia political "machine"
after he became Chief Justice. See volume III of this work.

[647] Journal of the Council of State, Nov. 20, 1782; MS., Va. St. Lib.

[648] Pendleton to Madison, Nov. 25, 1782; quoted in Rives, i, 182.

[649] Constitution of Virginia, 1776.

[650] Dodd, in _Amer. Hist. Rev._, xii, 776.

[651] Marshall participated in the appointment of General George Rogers
Clark to the office of Surveyor of Officers' and Soldiers' lands.
(Journal, Ex. Council, 1784, 57: MS., Va. St. Lib.)

[652] _Ib._

[653] Binney, in Dillon, iii, 291-92. This story is repeated in almost
all of the sketches of Marshall's life.

[654] Marshall to Monroe, April 17, 1784; MS., N.Y. Pub. Lib.

[655] His father, now in Kentucky, could no longer personally aid his
son in his old home. Thus Marshall himself had to attend to his own
political affairs.

[656] Marshall did not try for the Legislature again until 1787 when he
sought and secured election from Henrico. (See _infra._)

[657] Journal, H.D. (Spring Sess., 1784), 5. A Robert Marshall was also
a member of the House during 1784 as one of the representatives for Isle
of Wight County. He was not related in any way to John Marshall.

[658] _Ib._

[659] _Ib._

[660] Story, in Dillon, iii, 335-36.

[661] As an example of the number and nature of these soldier petitions
see Journal, H.D. (Spring Sess., 1784), 7, 9, 11, 16, 18, 44.

[662] See chap, VIII and footnote to p. 288.

[663] Williamson was a Tory of the offensive type. He had committed
hostile acts which embittered the people against him. (See _Cal. Va. St.
Prs._, ii. And see Eckenrode: _R. V._, chap, xi, for full account of
this and similar cases.)

[664] The gentle pastime of tarring and feathering unpopular persons and
riding them on sharp rails appears to have been quite common in all
parts of the country, for a long time before the Revolution. Men even
burned their political opponents at the stake. (See instances in
Belcher, i, 40-45.) Savage, however, as were the atrocities committed
upon the Loyalists by the patriots, even more brutal treatment was dealt
out to the latter by British officers and soldiers during the
Revolution. (See _supra_, chap. IV, footnote to p. 116.)

[665] Journal, H.D. (Spring Sess., 1784), 19.

[666] Journal, H.D. (Spring Sess., 1784), 23, 27.

[667] _Ib._, 45. For thorough examination of this incident see
Eckenrode: _R. V._, chap. xi.

[668] Journal, H.D. (Spring Sess., 1784), 57.

[669] _Ib._, 14.

[670] Hening, xi, 390.

[671] Journal, H.D., 70-71.

[672] Madison to Jefferson, July 3, 1794; _Writings_: Hunt, ii, 56-57.
The Constitution of 1776 never was satisfactory to the western part of
Virginia, which was under-represented. Representation was by counties
and not population. Also suffrage was limited to white freeholders; and
this restriction was made more onerous by the fact that county
representation was based on slave as well as free population. Also, the
Constitution made possible the perpetuation of the Virginia political
machine, previously mentioned, which afterward played a part of such
vast importance in National affairs. Yet extreme liberals like the
accomplished and patriotic Mason were against the Legislature turning
itself into a convention to make a new one. (Mason to Henry, May 6,
1783; Henry, ii, 185.)

[673] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 104.

[674] Hening, xi, 510-18. This law shows the chief articles of commerce
at that time and the kind of money which might be received as tolls. The
scale of equivalents in pounds sterling vividly displays the confused
currency situation of the period. The table names Spanish milled pieces
of eight, English milled crowns, French silver crowns, johannes, half
johannes, moidores, English guineas, French guineas, doubloons, Spanish
pistoles, French milled pistoles, Arabian sequins; the weight of each
kind of money except Spanish pieces of eight and English and French
milled crowns being carefully set out; and "other gold coin (German
excepted) by the pennyweight." If any of this money should be reduced in
value by lessening its weight or increasing its alloy it should be
received at "its reduced value only." (_Ib._)

[675] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 102.
Madison gives a very full history and description of this legislation.

[676] Marshall's Account Book contains entries of many of these
payments.

[677] Journal, H.D. (Nov. 1787), 27-127.

[678] Journal, H.D. (Nov. 1787), 70.

[679] _Ib._, 27.

[680] Hening, xii, 464-67. The preamble of the act recites that it is
passed because under the existing law "justice is greatly delayed by the
tedious forms of proceedings, suitors are therefore obliged to waste
much time and expense to the impoverishment of themselves and the state,
and decrees when obtained are with difficulty carried into execution."
(_Ib._)

[681] _Ib._, ix, 389-99.

[682] _Ib._, xi, 342-44.

[683] See Jefferson's letter to Mazzei, explaining the difference
between law and equity and the necessity for courts of chancery as well
as courts of law. This is one of the best examples of Jefferson's calm,
clear, simple style when writing on non-political subjects. (Jefferson
to Mazzei, Nov., 1785; _Works_: Ford, iv, 473-80.)

[684] For the best contemporaneous description of Virginia legislation
during this period see Madison's letters to Jefferson when the latter
was in Paris. (_Writings_: Hunt, i and ii.)

[685] For a thorough account of the religious struggle in Virginia from
the beginning see Eckenrode: _S. of C. and S._ On the particular phase
of this subject dealt with while Marshall was a member of the Virginia
Legislature see _ib._, chap. v.

[686] Mason to Henry, May 6, 1783, as quoted in Rowland, ii, 44.

[687] Meade, i, footnote to 142. And see _Atlantic Monthly, supra_.

[688] Eckenrode:_ S. of C. and S._, 75. On this general subject see
Meade, i, chaps. i and ii. "Infidelity became rife, in Virginia,
perhaps, beyond any other portion of land. The Clergy, for the most
part, were a laughing stock or objects of disgust." (_Ib._, 52.) Even
several years later Bishop Meade says that "I was then taking part in
the labours of the field, which in Virginia was emphatically _servile
labour_." (_Ib._, 27.)

"One sees not only a smaller number of houses of worship [in Virginia]
than in other provinces, but what there are in a ruinous or ruined
condition, and the clergy for the most part dead or driven away and
their places unfilled." (Schoepf, ii, 62-63.)

[689] Henry, ii, 199-206.

[690] Eckenrode: _S. of C. and S._, 77.

[691] Journal, H.D. (2d Sess., 1784), 19.

[692] _Ib._, 27.

[693] _Ib._, 82.

[694] _Ib._

[695] _Ib._

[696] _Ib._, 97. For the incorporation law see Hening, xi, 532-37; for
marriage law see _ib._, 532-35. Madison describes this law to Jefferson
and excuses his vote for it by saying that "the necessity of some sort
of incorporation for the purpose of holding & managing the property of
the Church could not well be denied, nor a more harmless modification of
it now be obtained. A negative of the bill, too, would have doubled the
eagerness and the pretexts for a much greater evil, a general
Assessment, which, there is good ground to believe, was parried by this
partial gratification of its warmest votaries." (Madison to Jefferson,
Jan. 9, 1785; _Writings_: Hunt, ii, 113.)

[697] Story, in Dillon, iii, 338.

[698] "Virginia certainly owed two millions sterling [$10,000,000] to
Great Britain at the conclusion of the war. Some have conjectured the
debt as high as three millions [$15,000,000].... These debts had become
hereditary from father to son for many generations, so that the planters
were a species of property annexed to certain mercantile houses in
London.... I think that state owed near as much as all the rest put
together." Jefferson's explanation of these obligations is extremely
partial to the debtors, of whom he was one. (Jefferson to Meusnier, Jan.
24, 1786; _Works_: Ford, v, 28.)

Most of Jefferson's earlier debts were contracted in the purchase of
slaves. "I cannot decide to sell my lands.... nor would I willingly sell
the slaves as long as there remains any prospect of paying my debts with
their labor." This will "enable me to put them ultimately on an easier
footing, which I will do the moment they have paid the [my] debts,...
two thirds of which have been contracted by purchasing them." (Jefferson
to Lewis, July 29, 1787; _ib._, 311.)

[699] For Virginia legislation on this subject see Hening, ix, x, and
xi, under index caption "British Debts."

[700] Definitive Treaty of Peace, 1783, art. 4.

[701] Journal, H.D. (1st Sess.), 1784, 41.

[702] _Ib._, 54; 72-73. The Treaty required both.

[703] Journal, H.D. (1st Sess., 1784), 74.

[704] _Ib._, 74-75. Henry led the fight against repealing the anti-debt
laws or, as he contended, against Great Britain's infraction of the
Treaty.

[705] Journal, H.D. (1st Sess., 1784), 25.

[706] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 114.

[707] See Madison's vivid description of this incident; _ib._, 116; also
Henry, ii, 233.

[708] _Ib._

[709] Marshall to Monroe, Dec. 2, 1784; MS., Monroe Papers, Lib. Cong.

[710] Madison to Monroe, Dec. 24, 1785; _Writings_: Hunt, ii, 205.

"Being convinced myself that nothing can be now done that will not
extremely dishonor us, and embarass Cong^s my wish is that the report
may not be called for at all. In the course of the debates no pains were
spared to disparage the Treaty by insinuations ag^{st} Cong^s, the
Eastern States, and the negociators of the Treaty, particularly J.
Adams. These insinuations & artifices explain perhaps one of the motives
from which the augmention of the foederal powers & respectability has
been opposed." (Madison to Monroe, Dec. 30, 1785; _ib._, 211.)

[711] Curiously enough, it fell to Jefferson as Secretary of State to
report upon, explain, and defend the measures of Virginia and other
States which violated the Treaty of Peace. (See Jefferson to the British
Minister, May 29, 1792; _Works_: Ford, vii, 3-99.) This masterful
statement is one of the finest argumentative products of Jefferson's
brilliant mind.

[712] Journal, H.D. (1787), 51.

[713] _Ib._, 52.

[714] _Ib._ James Monroe was a member of the House at this session and
voted against the first amendment and for the second. On the contrary,
Patrick Henry voted for the first and against the second amendment.
George Mason voted against both amendments. So did Daniel Boone, who
was, with Thomas Marshall, then a member of the Virginia Legislature
from the District of Kentucky. On the passage of the resolution, James
Monroe and Patrick Henry again swerved around, the former voting for and
the latter against it.

[715] Journal, H.D. (1787), 52.

[716] Journal, H.D. (1787), 79.

[717] "If we are now to pay the debts due to the British merchants, what
have we been fighting for all this while?" was the question the people
"sometimes" asked, testifies George Mason. (Henry, ii, 187.) But the
fact is that this question generally was asked by the people. Nothing
explains the struggle over this subject except that the people found it
a bitter hardship to pay the debts, as, indeed, was the case; and the
idea of not paying them at all grew into a hope and then a policy.

[718] Journal, H.D. (1787), 80.

[719] Hening, xii, 528. Richard Henry Lee thought that both countries
were to blame. (Lee to Henry, Feb. 14, 1785; quoted in Henry, iii, 279.)

[720] For an excellent statement regarding payment of British debts, see
letter of George Mason to Patrick Henry, May 6, 1783, as quoted in
Henry, ii, 186-87. But Mason came to put it on the ground that Great
Britain would renew the war if these debts were not paid.

[721] Story, in Dillon, iii, 338.

[722] Hening, x, chaps. ii and ix, 409-51.

[723] For a general review of the state of the country see _infra_,
chaps. VII and VIII.

[724] Hening, xi, chap. xlii, 171.

[725] _Ib._, chap. xxxi, 350.

[726] Journal, H.D., 52.

[727] In order to group subjects such as British debts, extradition, and
so forth, it is, unfortunately, essential to bring widely separated
dates under one head.

[728] Journal, H.D. (1st Sess., 1784), 11-12.

[729] Journal, H.D. (1st Sess., 1784), 37.

[730] _Ib._, 81; also, Hening, xi, 388.

[731] "The white people who inhabited the frontier, from the constant
state of warfare in which they lived with the Indians, had imbibed much
of their character; and learned to delight so highly in scenes of
crafty, bloody, and desperate conflict, that they as often gave as they
received the provocation to hostilities. Hunting, which was their
occupation, became dull and tiresome, unless diversified occasionally by
the more animated and piquant amusement of an Indian skirmish." (Wirt,
257.)

[732] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 110-11.

[733] Jay to Jefferson, Dec. 14, 1786; _Jay_: Johnston, iii, 224.

[734] Hening, xi, 471; and Henry, ii, 217.

[735] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii. 111.

[736] Article VIII, Constitution of Virginia, 1776.

[737] Madison to Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 111.

[738] _Ib._

[739] Journal, H.D. (2d Sess., 1784), 34-41.

[740] "The measure was warmly patronized by Mr. Henry." (Madison to
Jefferson, Jan. 9, 1785; _Writings_: Hunt, ii, 111.) The reason of
Henry's support of this extradition bill was not its Nationalist spirit,
but his friendship for the Indians and his pet plan to insure peace
between the white man and the red and to produce a better race of human
beings; all of which Henry thought could be done by intermarriages
between the whites and the Indians. He presented this scheme to the
House at this same session and actually carried it by the "irresistible
earnestness and eloquence" with which he supported it. (Wirt, 258.)

The bill provided that every white man who married an Indian woman
should be paid ten pounds and five pounds more for each child born of
such marriage; and that if any white woman marry an Indian they should
be entitled to ten pounds with which the County Court should buy live
stock for them; that once each year the Indian husband to this white
woman should be entitled to three pounds with which the County Court
should buy clothes for him; that every child born of this Indian man and
white woman should be educated by the State between the age of ten and
twenty-one years, etc., etc. (_Ib._)

This amazing bill actually passed the House on its first and second
reading and there seems to be no doubt that it would have become a law
had not Henry at that time been elected Governor, which took him "_out
of the way_," to use Madison's curt phrase. John Marshall favored this
bill.

[741] Journal, H.D. (2d Sess., 1784), 41.

[742] _Ib._

[743] See note 5, p. 239, _ante_.

[744] Marshall to Monroe, Dec., 1784; MS. Monroe Papers, Lib. Cong.;
also partly quoted in Henry, ii, 219.

[745] See _infra_, chap. IX.

[746] One of the curious popular errors concerning our public men is
that which pictures Washington as a calm person. On the contrary, he was
hot-tempered and, at times, violent in speech and action. It was with
the greatest difficulty that he trained himself to an appearance of
calmness and reserve.

[747] Story, in Dillon, iii, 338, 343.

[748] Journal, H.D. (Oct. Sess., 1787), 7.

[749] _Ib._, 11, 15.

[750] _Pennsylvania Packet_, Nov. 10, 1787: Pa. Hist. Soc.

[751] _Infra_, chaps. XI and XII.

[752] _Pennsylvania Packet_, Nov. 10, 1787; also see in Rowland, ii,
176.

[753] _Infra_, chaps. IX, XII; and also Washington to Lafayette, Feb. 7,
1788; _Writings_: Ford, xi, 220.

[754] _Pennsylvania Packet_, Nov. 10, 1787; Pa. Hist. Soc.

[755] Journal, H.D. (Oct. Sess., 1787), 15.

[756] _Ib._

[757] _Ib._, 95.

[758] _Ib._ (Dec., 1787), 143, 177.

[759] Hening, xii, 462-63.




CHAPTER VII

LIFE OF THE PEOPLE: COMMUNITY ISOLATION

    An infant people, spreading themselves through a wilderness
    occupied only by savages and wild beasts. (Marshall.)

    Of the affairs of Georgia, I know as little as of those of
    Kamskatska. (James Madison, 1786.)


"Lean to the right," shouted the driver of a lumbering coach to his
passengers; and all the jostled and bethumped travelers crowded to that
side of the clumsy vehicle. "Left," roared the coachman a little later,
and his fares threw themselves to the opposite side. The ruts and
gullies, now on one side and now on the other, of the highway were so
deep that only by acting as a shifting ballast could the voyagers
maintain the stage's center of gravity and keep it from an upset.[760]

This passageway through the forest, called a "road," was the
thoroughfare between Philadelphia and Baltimore and a part of the trunk
line of communication which connected the little cities of that period.
If the "road" became so bad that the coach could not be pulled through
the sloughs of mud, a new way was opened in the forest; so that, in some
places, there were a dozen of such cuttings all leading to the same spot
and all full of stumps, rocks, and trees.[761]

The passengers often had to abandon this four-wheeled contraption
altogether and walk in the mud; and were now and again called upon to
put their shoulders to the wheels of the stage when the horses, unaided,
were unable to rescue it.[762] Sometimes the combined efforts of horses
and men could not bring the conveyance out of the mire and it would have
to be left all night in the bog until more help could be secured.[763]
Such was a main traveled road at the close of the Revolutionary War and
for a long time after the Constitution was adopted.

The difficulty and danger of communication thus illustrated had a direct
and vital bearing upon the politics and statesmanship of the times. The
conditions of travel were an index to the state of the country which we
are now to examine. Without such a survey we shall find ourselves
floating aimlessly among the clouds of fancy instead of treading, with
sure foothold, the solid ground of fact. At this point, more perhaps
than at any other of our history, a definite, accurate, and
comprehensive inventory of conditions is essential. For not only is this
phase of American development more obscure than any other, but the want
of light upon it has led to vague consideration and sometimes to
erroneous conclusions.

We are about to witness the fierce and dramatic struggle from which
emerged the feeble beginnings of a Nation that, even to-day, is still in
the making; to behold the welter of plan and counterplot, of scheming
and violence, of deal and trade, which finally resulted in the formal
acceptance of the Constitution with a certainty that it would be
modified, and, to some extent, mutilated, by later amendments. We are
to listen to those "debates" which, alone, are supposed to have secured
ratification, but which had no more, and indeed perhaps less effect than
the familiar devices of "practical politics" in bringing about the
adoption of our fundamental law.

Since the victory at Yorktown a serious alteration had taken place in
the views of many who had fought hardest for Independence and popular
government. These men were as strong as ever for the building of a
separate and distinct National entity; but they no longer believed in
the wisdom or virtue of democracy without extensive restrictions. They
had come to think that, at the very best, the crude ore of popular
judgment could be made to enrich sound counsels only when passed through
many screens that would rid it of the crudities of passion,
whimsicality, interest, ignorance, and dishonesty which, they believed,
inhered in it. Such men esteemed less and less a people's government and
valued more and more a good government. And the idea grew that this
meant a government the principal purpose of which was to enforce order,
facilitate business, and safeguard property.

During his early years in the Legislature, as has appeared, Marshall's
opinions were changing. Washington, as we shall see, soon after peace
was declared, lost much of his faith in the people; Madison arrived at
the opinion that the majority were unequal to the weightier tasks of
popular rule; and Marshall also finally came to entertain the melancholy
fear that the people were not capable of self-government. Indeed,
almost all of the foremost men of the period now under review were
brought to doubt the good sense or sound heart of the multitude. The
fires of Jefferson's faith still burned, and, indeed, burned more
brightly; for that great reformer was in France and neither experienced
nor witnessed any of those popular phenomena which fell like a drenching
rain upon the enthusiasm of American statesmen at home for democratic
government.

This revolution in the views of men like Washington, Madison, and
Marshall was caused largely by the conduct of the masses, which, to such
men, seemed to be selfish, violent, capricious, vindictive, and
dangerous. The state of the country explains much of this popular
attitude and disposition. The development of Marshall's public ideas
cannot be entirely understood by considering merely his altered
circumstances and business and social connections. More important is a
review of the people, their environment and condition.

The extreme isolation of communities caused by want of roads and the
difficulties and dangers of communication; the general ignorance of the
masses; their childish credulity, and yet their quick and acute
suspicion springing, largely, from isolation and lack of knowledge;
their savage and narrow individualism, which resisted the establishment
of a central authority and was antagonistic to any but the loosest local
control; their envy and distrust of the prosperous and successful which
their own economic condition strengthened, if, indeed, this
circumstance did not create that sullen and dangerous state of mind--an
understanding of all these elements of American life at that time is
vital if we are to trace the development of Marshall's thinking and
explore the origins of the questions that confronted our early
statesmen.

The majority of the people everywhere were poor; most of them owed
debts; and they were readily influenced against any man who favored
payment, and against any plan of government that might compel it. Also,
the redemption of State and Continental debts, which was a hard and
ever-present problem, was abhorrent to them. Much of the scrip had
passed into the hands of wealthy purchasers. Why, exclaimed the popular
voice, should this expedient of war be recognized? Discharge of such
public obligations meant very definite individual taxes. It was as easy
to inflame a people so situated and inclined as it was hard to get
accurate information to them or to induce them to accept any reasoning
that made for personal inconvenience or for public burdens.

Marshall could not foresee the age of railway and telegraph and
universal education. He had no vision of a period when speedy and
accurate information would reach the great body of our population and
the common hearthstone thus become the place of purest and soundest
judgment. So it is impossible to comprehend or even apprehend his
intellectual metamorphosis during this period unless we survey the
physical, mental, and spiritual state of the country. How the people
lived, their habits, the extent of their education, their tendency of
thought, and, underlying all and vitally affecting all, the means or
rather want of means of communication--a knowledge of these things is
essential to an understanding of the times.[764] The absence of roads
and the condition of the few that did exist were thoroughly
characteristic of the general situation and, indeed, important causes of
it. It becomes indispensable, then, to visualize the highways of the
period and to picture the elements that produced the thinking and acting
of the larger part of the people. Many examples are necessary to bring
all this, adequately and in just proportion, before the eye of the
present.

When Washington, as President, was on his way to meet Congress, his
carriage stuck in the mud, and only after it had been pried up with
poles and pulled out by ropes could the Father of his Country proceed on
his journey;[765] and this, too, over the principal highway of Maryland.
"My nerves have not yet quite recovered the shock of the _wagon_," wrote
Samuel Johnston of a stage trip from Baltimore to New York two years
after our present Government was established.[766] Richard Henry Lee
objected to the Constitution, because, among other things, "many
citizens will be more than three hundred miles from the seat of this
[National] government";[767] and "as many assessors and collectors of
federal taxes will be above three hundred miles from the seat of the
federal government as will be less."[768]

The best road throughout its course, in the entire country, was the one
between Boston and New York; yet the public conveyance which made
regular trips with relays of horses in the most favorable season of the
year usually took an entire week for the journey.[769] The stage was
"shackling"; the horses' harness "made of ropes"; one team hauled the
stage only eighteen miles; the stop for the night was made at ten
o'clock, the start next morning at half-past two; the passengers often
had to "help the coachman lift the coach out of the quagmire."[770]

Over parts even of this, the finest long highway in the United States,
the stage had to struggle against rocks and to escape precipices. "I
knew not which to admire the most in the driver, his intrepidity or
dexterity. I cannot conceive how he avoided twenty times dashing the
carriage to pieces,"[771] testifies a traveler. In central
Massachusetts, the roads "were intolerable" even to a New Englander; and
"the country was sparsely inhabited by a rude population."[772] In
Rhode Island not far from Providence the traveler was forced to keep
mounting and dismounting from his horse in order to get along at
all.[773] Dr. Taylor, in the Massachusetts Convention of 1788, arguing
for frequent elections, said that it would take less than three weeks
for Massachusetts members of Congress to go from Boston to
Philadelphia.[774]

Farmers only a short distance from New York could not bring their
produce to the city in the winter because the roads were
impassable.[775] Up State, in Cooper's Otsego settlement, "not one in
twenty of the settlers had a horse and the way lay through rapid
streams, across swamps or over bogs.... If the father of a family went
abroad to labour for bread, it cost him three times its value before he
could bring it home."[776] As late as 1790, after forty thousand acres
in this region had been taken up "by the poorest order of men ... there
were neither roads nor bridges"; and about Otsego itself there was not
even "any trace of a road."[777] Where Utica now stands, the opening
through the wilderness, which went by the name of a road, was so nearly
impassable that a horseback traveler could make no more than two miles
an hour over it. Rocks, stumps, and muddy holes in which the horse sank,
made progress not only slow and toilsome, but dangerous.[778]

Twenty days was not an unusual time for ordinary wagons, carrying
adventurous settlers to the wilderness west of the Alleghanies, to cross
Pennsylvania from Philadelphia to Pittsburg;[779] and it cost a hundred
and twenty dollars a ton to haul freight between these points.[780]
Three years after our present Government was established, twenty out of
twenty-six lawsuits pending in Philadelphia were settled out of court
"rather than go ninety miles from Phil^a for trial."[781]

Talleyrand, journeying inland from the Quaker City about 1795, was
"struck with astonishment" at what he beheld: "At less than a hundred
and fifty miles distance from the Capital," he writes, "all trace of
men's presence disappeared; nature in all her primeval vigor confronted
us. Forests old as the world itself; decayed plants and trees covering
the very ground where they once grew in luxuriance." And Talleyrand
testifies that the fields, only a few miles' walk out of the "cities,"
had been "mere wildernesses of forest" at the time the Constitution was
adopted.[782]

"The length and badness of the roads from hence [Mount Vernon] to
Philadelphia" made Washington grumble with vexation and disgust;[783]
and Jefferson wrote of the President's Southern tour in 1791: "I shall
be happy to hear that no accident has happened to you in the bad
roads ... that you are better prepared for those to come by lowering
the hang [body] of your carriage and exchanging the coachman for two
postilions ... which [are] ... essential to your safety."[784]

No more comfortable or expeditious, if less dangerous, was travel by
boat on the rivers. "Having lain all night in my Great Coat and Boots in
a berth not long enough for me," chronicles Washington of this same
Presidential journey, "we found ourselves in the morning still fast
aground."[785]

So difficult were the New Jersey roads that the stout and well-kept
harness with which Washington always equipped his horses was badly
broken going through New Jersey in 1789.[786] "The roads [from Richmond
to New York] thro' the whole were so bad that we could never go more
than three miles an hour, some times not more than two, and in the
night, but one," wrote Jefferson[787] in March, 1790.

A traveler starting from Alexandria, Virginia, to visit Mount Vernon,
nine miles distant, was all day on the road, having become lost, in the
"very thick woods." So confusing was the way through this forest that
part of this time he was within three miles of his destination.[788]
Twelve years after our present Government was established James A.
Bayard records of his journey to the Capital: "Tho' traveling in the
mail stage ... we were unable to move at more than the rate of two or
three miles an hour."[789]

Throughout Virginia the roads were execrable and scarcely deserved the
name. The few bridges usually were broken.[790] The best road in the
State was from Williamsburg, the old Capital, to Richmond, the new, a
distance of only sixty-three miles; yet, going at highest speed, it
required two days to make the trip.[791] Traveling in Virginia was
almost exclusively by horseback; only negroes walked.[792] According to
Grigsby, the familiar vision in our minds of the picturesque coach
comfortably rolling over attractive highways, with postilions and
outriders, which we now picture when we think of traveling in old
Virginia, is mostly an historical mirage; for, says Grigsby, "coaches
were rarely seen. There were thousands of respectable men in the
Commonwealth who had never seen any other four-wheeled vehicle than a
wagon and there were thousands who had never seen a wagon" at the time
when the Constitution was ratified.[793]

If horseback journeys were sore trials to the rider, they were
desperately hard and sometimes fatal to the poor brute that carried
him. In crossing unfordable rivers on the rude ferryboats, the horses'
legs frequently were broken or the animals themselves often killed or
drowned.[794] From Fredericksburg to Alexandria the roads were
"frightfully bad."[795] As late as 1801 the wilderness was so dense just
above where the City of Washington now stands that Davis called it "the
wilds of the Potomac." In most parts of Virginia a person unacquainted
with the locality often became lost in the forests.[796] South of
Jamestown the crude and hazardous highways led through "eternal
woods."[797]

A short time before the Revolution, General Wilkinson's father bought
five hundred acres on the present site of the National Capital,
including the spot where the White House now stands; but his wife
refused to go there from a little hamlet near Baltimore where her family
then lived, because it was so far away from the settlements in the
backwoods of Maryland.[798] A valuable horse was stolen from a Virginia
planter who lived one hundred and forty miles from Richmond; but,
although the thief was known, the expense of going to the Capital with
witnesses was double the value of the horse, and so the planter pocketed
his loss.[799] It cost more to transport tobacco from Augusta County,
Virginia, to market than the tobacco was worth, so difficult and
expensive was the carriage.[800]

A sergeant in a Virginia regiment during the Revolutionary War, living
in a part of the State which at present is not two hours' ride from the
Capital, petitioned the House of Delegates in 1790 for payment of his
arrears because he lived so far away from Richmond that he had found it
impossible to apply within the time allowed for the settlement of his
accounts in the regular way.[801] In 1785 the price of tobacco on the
James River or the Rappahannock, and in Philadelphia varied from twenty
to ninety-five per cent, although each of these places was "the same
distance from its ultimate market,"[802] so seriously did want of
transportation affect commerce. "The trade of this Country is in a
deplorable Condition ... the loss direct on our produce & indirect on
our imports is not less than 50 per ct.," testifies Madison.[803]

Only in the immediate neighborhood of Philadelphia, Boston,[804] or New
York, neither of which "cities" was as large as a moderate-sized inland
town of to-day, were highways good, even from the point of view of the
eighteenth century. In all other parts of America the roads in the
present-day sense did not exist at all. Very often such trails as had
been made were hard to find and harder to keep after they had been
found. Near the close of the Revolution, Chastellux became tangled up in
the woods on his way to visit Jefferson at Monticello "and travelled a
long time without seeing any habitation."[805]

Whoever dared to take in North Carolina what, at present, would be a
brief and pleasant jaunt, then had to go through scores of miles of
"dreary pines" in which the traveler often lost his way and became
bewildered in the maze of the forest.[806] Again, the wanderer would
find himself in a desolation of swamp and wood without the hint of a
highway to follow out of it; and sleeping on the ground beneath the
trees of this wilderness, with only wild animals about him, was, for the
ordinary traveler, not an uncommon experience.[807]

Even when the road could be traced, bears would follow it, so much was
it still a part of their savage domain.[808] The little traveling
possible when the weather was good was sometimes entirely suspended for
days after a rain or snowfall, even out of a "city" like Baltimore.[809]
Six years after the Constitution was adopted, Talleyrand found the
buildings of that ambitious town "disput[ing] the ground with trees
whose stumps have not yet been removed."[810]

Such were the means of communication of a people scattered over a
territory of almost half a million square miles. The total population of
the United States was about three and a quarter millions; the same part
of the country to-day has a population of not far from fifty-five
millions. Including cities, and adding to these the more thickly settled
portions adjoining them, there were not in the original States seven
men, women, and children, all told, to the square mile. If we add
Kentucky, Tennessee, Ohio, Illinois, and Indiana, into which the
restless settlers already were moving, the people then living in the
United States were fewer than five persons to the square mile.

The various little clusters of this scanty and widely separated
population were almost entirely out of touch one with another.
Inhabitants were scattered through those far-flung stretches called the
United States, but they were not a people. Scarcely any communication
existed between them; while such a thing as mail service was unknown to
all but a comparatively few thousands. It required six days and
sometimes nine to carry mail between Boston and New York. As late as
1794 a letter of Jefferson, then in Charlottesville, Virginia, to
Madison at Philadelphia, reached the latter nine days after it was
sent; and another letter between the same correspondents was eight days
on the journey.[811]

Yet this was unusually expeditious. One month later, on January 26,
1795, Madison wrote Jefferson that "I have received your favor of Dec^r.
28, but [not] till three weeks after the date of it."[812] Summer, when
the post-riders made better time, seemed not greatly to increase the
dispatch of mail; for it took more than a month for a letter posted in
New York in that season of the year to reach an accessible Virginia
county seat.[813] Letters from Richmond, Virginia, to New York often did
not arrive until two months after they were sent.[814] But better time
was frequently made and a letter between these points was, commonly,
hurried through in a month.[815]

Many weeks would go by before one could send a letter from an interior
town in Pennsylvania. "This Uniontown is the most obscure spot on the
face of the globe.... I have been here seven or eight weeks without one
opportunity of writing to the land of the living," complains a disgusted
visitor.[816] A letter posted by Rufus King in Boston, February 6, 1788,
to Madison in New York was received February 15;[817] and although
anxiously awaiting news, Madison had not, on February 11, heard that
Massachusetts had ratified the Constitution, although that momentous
event had occurred five days before.[818] New York first learned of that
historic action eight days after it was taken.[819] But for the
snail-like slowness of the post, the Constitution would certainly have
been defeated in the Virginia Convention of 1788.[820]

Transatlantic mail service was far more expeditious considering the
distance; a letter from Jay in London reached Wolcott at Philadelphia in
less than eight weeks.[821] But it sometimes required five months to
carry mail across the ocean;[822] even this was very much faster than
one could travel by land in America. Four weeks from Cowes, England, to
Lynnhaven Bay, Virginia, was a record-breaking voyage.[823]

Such letters as went through the post-offices were opened by the
postmasters as a matter of course, if these officials imagined that the
missives contained information, or especially if they revealed the
secret or familiar correspondence of well-known public men.[824] "By
passing through the post-office they [letters] should become known to
all" men, Washington cautioned Lafayette in 1788.[825] In 1791, the
first year of the Post-Office under our present Government, there were
only eighty-nine post-offices in the entire country.[826] "As late as
1791 there were only six post-offices in New Jersey and none south of
Trenton."[827]

Yet letters were the principal means by which accounts of what was
happening in one part of the country were made known to the people who
lived in other sections; and this personal correspondence was by far the
most trustworthy source of information, although tinctured as it
naturally was by the prejudice of the writer and often nothing but
report of mere rumor.

Newspapers were few in number and scanty in news. When the Constitution
was adopted, not many regularly issued newspapers were printed in the
whole country. Most of these were published in Philadelphia, Boston, New
York, and in two or three of the other larger towns. Only ten papers
were printed in Connecticut, one of the best informed and best served of
all the States, and of these several soon expired;[828] in Ridgefield,
with twelve hundred inhabitants, there were but four newspaper
subscribers.[829] In 1784, Virginia had only one newspaper, published at
Richmond twice a week.[830]

These papers carried scarcely any news and the little they published was
often weeks and sometimes months old, and as uncertain as it was stale.
"It is but seldom that I have an opportunity of peeping into a
newspaper," wrote "Agricola" to the Salem (Massachusetts) "Gazette,"
September 13, 1791, "and when it happens it is commonly a stale one of 2
or 3 weeks back; but I lately met with your fresh Gazette of August
30th--may be I shan't see another for months to come."[831] "Newspaper
paragraphs, unsupported by other testimony, are often contradictory and
bewildering," wrote Washington of so big, important, and exciting news
as the progress of Shays's Rebellion.[832] On the same day Washington
complained to General Knox that he was "bewildered with those vague and
contradictory reports which are presented in the newspapers."[833]

But what this pygmy press lacked in information it made up in personal
abuse. Denunciation of public men was the rule, scandal the fashion.
Even the mild and patient Franklin was driven to bitter though witty
protest. He called the press "THE SUPREMEST COURT OF JUDICATURE," which
"may judge, sentence, and condemn to infamy, not only private
individuals, but public bodies, &c. with or without inquiry or hearing,
_at the court's discretion_." This "Spanish Court of Inquisition,"
asserts Franklin, works "in the dark" and so rapidly that "an honest,
good Citizen may find himself suddenly and unexpectedly accus'd, and in
the same Morning judg'd and condemn'd, and sentence pronounced against
him, that he is a _Rogue_ and a _Villian_."

"The liberty of the press," writes Franklin, operates on citizens
"somewhat like the _Liberty of the Press_ that Felons have, by the
Common Law of England, before Conviction, that is, to be _press'd_ to
death or hanged." "Any Man," says he, "who can procure Pen, Ink, and
Paper, with a Press, and a huge pair of BLACKING BALLS, may
commissionate himself" as a court over everybody else, and nobody has
any redress. "For, if you make the least complaint of the _judge's_
[editor's] conduct, he daubs his blacking balls in your face wherever he
meets you, and, besides tearing your private character to flitters marks
you out for the odium of the public, as an _enemy to the liberty of the
press_." Franklin declared that the press of that day was supported by
human depravity.

Searching for a remedy which would destroy the abuse but preserve the
true liberty of the press, Franklin finally concludes that he has found
it in what he calls "the _liberty of the cudgel_." The great philosopher
advised the insulted citizen to give the editor "a good drubbing"; but
if the public should feel itself outraged, it should restrain itself
and, says Franklin, "in moderation content ourselves with tarring and
feathering, and tossing them [editors] in a blanket."[834]

Even Jefferson was sometimes disgusted with the press. "What do the
foolish printers of America mean by retailing all this stuff in our
papers?--As if it were not enough to be slandered by one's enemies
without circulating the slanders among his friends also."[835] An
examination of the newspapers of that period shows that most of the
"news" published were accounts of foreign events; and these, of course,
had happened weeks and even months before.

Poor, small, and bad as the newspapers of the time were, however, they
had no general circulation many miles from the place where they were
published. Yet, tiny driblets trickled through by the belated posts to
the larger towns and were hastily read at villages where the post-riders
stopped along the way. By 1790 an occasional country newspaper appeared,
whose only source of news from the outside world was a fugitive copy of
some journal published in the city and such tales as the country editor
could get travelers to tell him: whether these were true or false made
not the slightest difference--everything was fish that came to his
net.[836]

Common schools in the present-day understanding of the term did not
exist. "There was not a grammar, a geography, or a history of any kind
in the school," testifies Samuel G. Goodrich[837] (Peter Parley) of
Ridgefield, Connecticut; and this at a time when the Constitution had
been adopted and our present Government was in operation. "Slates &
pencils were unknown, paper was imported, scarce and costly"; most
pupils in New England "cyphered on birch bark"; and a teacher who could
compute interest was considered "great in figures."[838] "The teacher
was not infrequently a person with barely education enough to satisfy
the critical requirements of some illiterate committeemen.... The pay
was only from three to five dollars a month, and two months during the
winter season was the usual term."[839] The half-dozen small but
excellent colleges and the few embryonic academies surrounded by
forests, where educated and devout men strove to plant the seeds of
institutions of learning, could not, altogether, reach more than a few
hundred pupils.

"_Anthony McDonald_ teaches boys and girls their grammar tongue; also
Geography terrestrial and celestial--Old hats made as good as new." So
read the sign above the door of McDonald's "school" in Virginia, a dozen
years after Washington was elected President.[840] For the most part
children went untaught, except in "the three R's," which, in some
mysterious manner, had been handed down from father to son. Yet in the
back settlements it was common to find men of considerable property who
could not read or write; and some of those who could make out to read
did not know whether the earth was round or flat.[841] There were but
thirty students at Virginia's historic college in 1795. Weld dined with
President Madison, of William and Mary's, and several of the students
were at the table. Some of these young seekers after culture were
without shoes, some without coats; and each of them rose and helped
himself to the food whenever he liked.[842]

Parts of the country, like the Mohawk Valley in New York, were fairly
settled and well cultivated.[843] In the more thickly inhabited parts of
New England there were order, thrift, and industry.[844] The houses of
the most prosperous farmers in Massachusetts, though "frequently but one
story and a garret," had "their walls papered"; tea and coffee were on
their tables when guests appeared; the women were clad in calicoes and
the men were both farmers and artisans.[845] Yet on the road from Boston
to Providence houses were seen already falling into decay; "women and
children covered with rags."[846] In Newport, Rhode Island, idle men
loafed on the street corners, houses were tumbling down from negligence,
grass grew in the public square, and rags were stuffed into the
windows.[847]

In Connecticut the people were unusually prosperous; and one
enthusiastic Frenchman, judging that State from the appearance of the
country around Hartford, exclaimed: "It is really the Paradise of the
United States."[848] Weld found that, while the "southeast part of ...
Pennsylvania is better cultivated than any other part of America, yet
the style of farming is ... very slovenly.... The farmer ... in
England ... who rents fifty acres ... lives far more comfortably in
every respect than the farmer in Pennsylvania, or any other of the
middle states, who owns two hundred acres."[849]

In the homes of Quaker farmers near Philadelphia, however, the furniture
was of black walnut, the beds and linen white and clean, the food varied
and excellent.[850] Yet a settler's house in the interior of
Pennsylvania was precisely the reverse, as the settler himself was the
opposite of the industrious and methodical Quaker husbandman. A log
cabin lighted only by the open door, and with the bare earth for a
floor, housed this pioneer and his numerous family. Often he was a man
who had lost both fortune and credit and therefore sought regions where
neither was necessary. When neighbors began to come in such numbers that
society (which to him meant government, order, and taxes) was formed, he
moved on to a newer, more desolate, and more congenial spot. Mostly
hunter and very little of a farmer, he with his nomad brood lived "in
the filth of his little cabin," the rifle or rod, and corn from the
meager clearing, supplying all his wants except that of whiskey, which
he always made shift to get.

One idea and one alone possessed this type--the idea of independence,
freedom from restraint. He was the high priest of the religion of
do-as-you-like. He was the supreme individualist, the ultimate democrat
whose non-social doctrine has so cursed modern America. "He will not
consent to sacrifice a single natural right for all the benefits of
government,"[851] chronicles a sympathetic observer of these men.

Freneau, a fervent admirer of this shiftless and dissolute type, thus
describes him and his home:--

/*
  "Far in the west, a paltry spot of land,
  That no man envied, and that no man owned,
  A woody hill, beside a dismal bog--
  This was your choice; nor were you much to blame;
  And here, responsive to the croaking frog,
  You grubbed, and stubbed,
  And feared no landlord's claim."[852]
*/

Nor was hostility to orderly society confined to this class. Knox wrote
Washington that, in Massachusetts, those who opposed the Constitution
acted "from deadly principle levelled at the existence of all government
whatever."[853]

The better class of settlers who took up the "farms" abandoned by the
first shunners of civilization, while a decided improvement, were,
nevertheless, also improvident and dissipated. In a poor and slip-shod
fashion, they ploughed the clearings which had now grown to fields,
never fertilizing them and gathering but beggarly crops. Of these a part
was always rye or corn, from which whiskey was made. The favorite
occupation of this type was drinking to excess, arguing politics,
denouncing government, and contracting debts.[854] Not until debts and
taxes had forced onward this second line of pioneer advance did the
third appear with better notions of industry and order and less hatred
of government and its obligations.[855]

In New England the out-push of the needy to make homes in the forests
differed from the class just described only in that the settler remained
on his clearing until it grew to a farm. After a few years his ground
would be entirely cleared and by the aid of distant neighbors, cheered
to their work by plenty of rum, he would build a larger house.[856] But
meanwhile there was little time for reading, small opportunity for
information, scanty means of getting it; and mouth-to-mouth rumor was
the settler's chief informant of what was happening in the outside
world. In the part of Massachusetts west of the Connecticut Valley, at
the time the Constitution was adopted, a rough and primitive people were
scattered in lonesome families along the thick woods.[857]

In Virginia the contrast between the well-to-do and the masses of the
people was still greater.[858] The social and economic distinctions of
colonial Virginia persisted in spite of the vociferousness of democracy
which the Revolution had released. The small group of Virginia gentry
were, as has been said, well educated, some of them highly so,
instructed in the ways of the world, and distinguished in manners.[859]
Their houses were large; their table service was of plate; they kept
their studs of racing and carriage horses.[860] Sometimes, however, they
displayed a grotesque luxury. The windows of the mansions, when broken,
were occasionally replaced with rags; servants sometimes appeared in
livery with silk stockings thrust into boots;[861] and again dinner
would be served by naked negroes.[862]

The second class of Virginia people were not so well educated, and the
observer found them "rude, ferocious, and haughty; much attached to
gaming and dissipation, particularly horse-racing and cock-fighting";
and yet, "hospitable, generous, and friendly." These people, although by
nature of excellent minds, mingled in their characters some of the
finest qualities of the first estate, and some of the worst habits of
the lower social stratum. They "possessed elegant accomplishments and
savage brutality."[863] The third class of Virginia people were lazy,
hard-drinking, and savage; yet kind and generous.[864] "Whenever these
people come to blows," Weld testifies, "they fight just like wild
beasts, biting, kicking, and endeavoring to tear each other's eyes out
with their nails"; and he says that men with eyes thus gouged out were a
common sight.[865]

The generation between the birth of Marshall and the adoption of the
Constitution had not modified the several strata of Virginia society
except as to apparel and manners, both of which had become worse than in
colonial times.

Schoepf found shiftlessness[866] a common characteristic; and described
the gentry as displaying the baronial qualities of haughtiness, vanity,
and idleness.[867] Jefferson divides the people into two sections as
regards characteristics, which were not entirely creditable to either.
But in his comparative estimate Jefferson is far harsher to the Southern
population of that time than he is to the inhabitants of other States;
and he emphasizes his discrimination by putting his summary in parallel
columns.

"While I am on this subject," writes Jefferson to Chastellux, "I will
give you my idea of the characters of the several States.

    In the North they are             In the South they are
  cool                              fiery
  sober                             voluptuary
  laborious                         indolent
  persevering                       unsteady
  independent                       independent
  jealous of their own liberties,   zealous for their own liberties, but
      and just to those of others       trampling on those of others
  interested                        generous
  chicaning                         candid
  superstitious and hypocritical    without attachment or pretensions to
      in their religion                 any religion but that of the
                                        heart.

"These characteristics," continues Jefferson, "grow weaker and weaker by
graduation from North to South and South to North, insomuch that an
observing traveller, without the aid of the quadrant may always know his
latitude by the character of the people among whom he finds himself."

"It is in Pennsylvania," Jefferson proceeds in his careful analysis,
"that the two characters seem to meet and blend, and form a people free
from the extremes both of vice and virtue. Peculiar circumstances have
given to New York the character which climate would have given had she
been placed on the South instead of the north side of Pennsylvania.
Perhaps too other circumstances may have occasioned in Virginia a
transplantation of a particular vice foreign to its climate." Jefferson
finally concludes: "I think it for their good that the vices of their
character should be pointed out to them that they may amend them; for a
malady of either body or mind once known is half cured."[868]

A plantation house northwest of Richmond grumblingly admitted a lost
traveler, who found his sleeping-room with "filthy beds, swarming with
bugs" and cracks in the walls through which the sun shone.[869] The most
bizarre contrasts startled the observer--mean cabins, broken windows, no
bread, and yet women clad in silk with plumes in their hair.[870] Eight
years after our present National Government was established, the food of
the people living in the Shenandoah Valley was salt fish, pork, and
greens; and the wayfarer could not get fresh meat except at Staunton or
Lynchburg,[871] notwithstanding the surrounding forests filled with game
or the domestic animals which fed on the fields where the forests had
been cleared away.

Most of the houses in which the majority of Virginians then lived were
wretched;[872] Jefferson tells us, speaking of the better class of
dwellings, that "it is impossible to devise things more ugly,
uncomfortable, and happily more perishable." "The poorest people,"
continues Jefferson, "build huts of logs, laid horizontally in pens,
stopping the interstices with mud.... The wealthy are attentive to the
raising of vegetables, but very little so to fruits.... The poorer
people attend to neither, living principally on ... animal diet."[873]

In general the population subsisted on worse fare than that of the
inhabitants of the Valley.[874] Even in that favored region, where
religion and morals were more vital than elsewhere in the Commonwealth,
each house had a peach brandy still of its own; and it was a man of
notable abstemiousness who did not consume daily a large quantity of
this spirit. "It is scarcely possible," writes Weld, "to meet with a man
who does not begin the day with taking one, two, or more drams as soon
as he rises."[875]

Indeed, at this period, heavy drinking appears to have been universal
and continuous among all classes throughout the whole country[876] quite
as much as in Virginia. It was a habit that had come down from their
forefathers and was so conspicuous, ever-present and peculiar, that
every traveler through America, whether native or foreign, mentions it
time and again. "The most common vice of the inferior class of the
American people is drunkenness," writes La Rochefoucauld in 1797.[877]
And Washington eight years earlier denounced "drink which is the source
of all evil--and the ruin of half the workmen in this country."[878]
Talleyrand, at a farmer's house in the heart of Connecticut, found the
daily food to consist of "smoked fish, ham, potatoes, strong beer and
brandy."[879]

Court-houses built in the center of a county and often standing entirely
alone, without other buildings near them, nevertheless always had
attached to them a shanty where liquor was sold.[880] At country taverns
which, with a few exceptions, were poor and sometimes vile,[881]
whiskey mixed with water was the common drink.[882] About Germantown,
Pennsylvania, workingmen received from employers a pint of rum each day
as a part of their fare;[883] and in good society men drank an
astonishing number of "full bumpers" after dinner, where, already, they
had imbibed generously.[884] The incredible quantity of liquor, wine,
and beer consumed everywhere and by all classes is the most striking and
conspicuous feature of early American life. In addition to the very
heavy domestic productions of spirits,[885] there were imported in 1787,
according to De Warville, four million gallons of rum, brandy, and other
spirits; one million gallons of wine; three million gallons of molasses
(principally for the manufacture of rum); as against only one hundred
and twenty-five thousand pounds of tea.[886]

Everybody, it appears, was more interested in sport and spending than in
work and saving. As in colonial days, the popular amusements continued
to be horse-racing and cock-fighting; the first the peculiar diversion
of the quality; the second that of the baser sort, although men of all
conditions of society attended and delighted in both.[887] But the
horse-racing and the cock-fighting served the good purpose of bringing
the people together; for these and the court days were the only
occasions on which they met and exchanged views. The holding of court
was an event never neglected by the people; but they assembled then to
learn what gossip said and to drink together rather than separately, far
more than they came to listen to the oracles from the bench or even the
oratory at the bar; and seldom did the care-free company break up
without fights, sometimes with the most serious results.[888]

Thus, scattered from Maine to Florida and from the Atlantic to the
Alleghanies, with a skirmish line thrown forward almost to the
Mississippi, these three and a quarter millions of men, women, and
children, did not, for the most part, take kindly to government of any
kind. Indeed, only a fraction of them had anything to do with
government, for there were no more than seven hundred thousand adult
males among them,[889] and of these, in most States, only
property-holders had the ballot. The great majority of the people seldom
saw a letter or even a newspaper; and the best informed did not know
what was going on in a neighboring State, although anxious for the
information.

"Of the affairs of Georgia, I know as little as of those of
Kamskatska," wrote Madison to Jefferson in 1786.[890] But everybody did
know that government meant law and regulation, order and mutual
obligation, the fulfillment of contracts and the payment of debts. Above
all, everybody knew that government meant taxes. And none of these
things aroused what one would call frantic enthusiasm when brought home
to the individual. Bloated and monstrous individualism grew out of the
dank soil of these conditions. The social ideal had hardly begun to
sprout; and nourishment for its feeble and languishing seed was sucked
by its overgrown rival.

Community consciousness showed itself only in the more thickly peopled
districts, and even there it was feeble. Generally speaking and aside
from statesmen, merchants, and the veterans of the Revolution, the idea
of a National Government had not penetrated the minds of the people.
They managed to tolerate State Governments, because they always had
lived under some such thing; but a National Government was too far away
and fearsome, too alien and forbidding for them to view it with
friendliness or understanding. The common man saw little difference
between such an enthroned central power and the Royal British Government
which had been driven from American shores.

To be sure, not a large part of the half-million men able for the
field[891] had taken much of any militant part in expelling British
tyranny; but these "chimney-corner patriots," as Washington stingingly
described them, were the hottest foes of British despotism--after it had
been overthrown. And they were the most savage opponents to setting up
any strong government, even though it should be exclusively American.

Such were the economic, social, and educational conditions of the masses
and such were their physical surroundings, conveniences, and
opportunities between the close of the War for Independence and the
setting-up of the present Government. All these facts profoundly
affected the thought, conduct, and character of the people; and what the
people thought, said, and did, decisively influenced John Marshall's
opinion of them and of the government and laws which were best for the
country.

During these critical years, Jefferson was in France witnessing
government by a decaying, inefficient, and corrupt monarchy and
nobility, and considering the state of a people who were without that
political liberty enjoyed in America.[892] But the vagaries, the
changeableness, the turbulence, the envy toward those who had property,
the tendency to repudiate debts, the readiness to credit the grossest
slander or to respond to the most fantastic promises, which the newly
liberated people in America were then displaying, did not come within
Jefferson's vision or experience.

Thus, Marshall and Jefferson, at a time destined to be so important in
determining the settled opinions of both, were looking upon opposite
sides of the shield. It was a curious and fateful circumstance and it
was repeated later under reversed conditions.


FOOTNOTES:

[760] Weld, i, 37-38; also, Morris, ii, 393-94.

[761] Weld, i, 38.

[762] Baily's _Journal_ (1796-97), 108.

[763] _Ib._, 109-10.

[764] Professor Beard, in his exposition of the economic origins of the
Constitution, shows that nearly all of the men who framed it were
wealthy or allied with property interests and that many of them turned
up as holders of Government securities. (Beard: _Econ. I. C._, chap. V.)
As a matter of fact, none but such men could have gone to the Federal
Convention at Philadelphia, so great were the difficulties and so heavy
the expenses of travel, even if the people had been minded to choose
poorer and humbler persons to represent them; at any rate, they did not
elect representatives of their own class until the Constitution was to
be ratified and then, of course, only to State Conventions which were
accessible.

[765] Weld, i, 47-48.

[766] Johnston to Iredell, Jan. 30, 1790; McRee, ii, 279.

[767] "Letters of a Federal Farmer," no. 2; Ford: _P. on C._, 292.

[768] _Ib._, no. 3, 302.

[769] De Warville made a record trip from Boston to New York in less
than five days. (De Warville, 122.) But such speed was infrequent.

[770] Josiah Quincy's description of his journey from Boston to New York
in 1794. (Quincy: _Figures of the Past_, 47-48.)

[771] De Warville, 138-39.

[772] Watson, 266.

[773] "The road is execrable; one is perpetually mounting and descending
and always on the most rugged roads." (Chastellux, 20.)

[774] Elliott, ii, 21-22.

[775] "In December last, the roads were so intollerably bad that the
country people could not bring their forage to market, though _actually
offered the cash on delivery_." (Pickering to Hodgdon; _Pickering_:
Pickering, i, 392.)

[776] Cooper, 1875-86, as quoted in Hart, iii, 98.

[777] _Ib._

[778] Watson, 270. Along one of the principal roads of New York, as late
as 1804, President Dwight discovered only "a few lonely plantations" and
he "occasionally found a cottage and heard a distant sound of an axe and
of a human voice. All else was grandeur, gloom, and solitude." (Halsey:
_Old New York Frontier_, 384.)

[779] Hart, iii, 116.

[780] _Mag. Western Hist._, i, 530.

[781] Justice Cushing to Chief Justice Jay, Oct. 23, 1792; _Jay_:
Johnston, iii, 450.

[782] _Memoirs of Talleyrand_: Broglie's ed., i, 176-77.

[783] Washington to Jay, Nov. 19, 1790; _Jay_: Johnston, iii, 409.

[784] Jefferson to Washington, March 27, 1791; _Cor. Rev._: Sparks, iv,
366.

[785] Washington's _Diary_: Lossing, Feb. 25, 1791.

[786] Washington to Jay, Dec. 13, 1789; _Jay_: Johnston, iii, 381.

[787] Jefferson to T. M. Randolph, March 28, 1790; _Works_: Ford, vi,
36.

[788] Weld, i, 91.

[789] Bayard to Rodney, Jan. 5, 1801; _Bayard Papers_: Donnan, ii, 118.

[790] Schoepf, ii, 46.

[791] _Ib._, 78.

[792] _Ib._, 45.

[793] Grigsby, i, 26.

[794] Weld, i, 170.

[795] Watson, 60.

[796] Davis, 372.

[797] Schoepf, ii, 95.

[798] Wilkinson: _Memoirs_, i, 9-10. The distance which General
Wilkinson's mother thought "so far away" was only forty miles.

[799] Schoepf, ii, 53.

[800] Zachariah Johnson, in Elliott, iii, 647.

[801] Journal, H.D. (1790), 13.

[802] Madison to Lee, July 7, 1785; _Writings_: Hunt, ii, 149-51.

[803] _Ib._

[804] Boston was not a "city" in the legal interpretation until 1822.

[805] Chastellux, 225. "The difficulty of finding the road in many parts
of America is not to be conceived except by those strangers who have
travelled in that country. The roads, which are through the woods, not
being kept in repair, as soon as one is in bad order, another is made in
the same manner, that is, merely by felling trees, and the whole
interior parts are so covered that without a compass it is impossible to
have the least idea of the course you are steering. The distances, too,
are so uncertain as in every county where they are not measured, that no
two accounts resemble each other. In the back parts of Pennsylvania,
Maryland, and Virginia, I have frequently travelled thirty miles for
ten, though frequently set right by passengers and negroes." (_Ib._
Translator's note.)

[806] Smyth, _Tour of the United States_, i, 102-103.

[807] Watson, 40. "Towards the close of the day I found myself entangled
among swamps amid an utter wilderness, and my horse almost exhausted in
my efforts to overtake Harwood. As night closed upon me I was totally
bewildered and without a vestige of a road to guide me. Knowing the
impossibility of retracing my steps in the dark, through the mazes I had
traversed, I felt the necessity of passing the night in this solitary
desert ... in no trifling apprehension of falling a prey to wild beasts
before morning." (_Ib._)

[808] _Ib._

[809] "I waited at Baltimore near a week before I could proceed on my
journey the roads being rendered impassable." (Baily's _Journal_
(1796-97), 107.)

[810] _Memoirs of Talleyrand_: Broglie's ed., i, 177.

[811] Madison to Jefferson, Dec. 21, 1794; _Writings_: Hunt, vi, 227.

[812] Madison to Jefferson, Jan. 26, 1795; _ib._, 230.

[813] "Your favor of July 6 having been address^d to Williamsburg,
instead of _Orange C. Ho[u]se_, did not come to hand till two days ago."
(Madison to Livingston, Aug. 10, 1795; _ib._, vi, 234.)

[814] Lee to Henry, May 28, 1789; Henry, iii, 387.

[815] Lee to Henry, Sept. 27, 1789; Henry, iii, 402.

[816] Ephraim Douglass to Gen. James Irvine, 1784; _Pa. Mag. Hist. and
Biog._, i, 50.

[817] Madison to Washington, Feb. 15, 1788; and King to Madison, Feb. 6,
1788; _Writings_: Hunt, v, footnote to p. 100.

[818] Madison to Washington, Feb. 11, 1788: _Writings_: Hunt, v, 99.

[819] Madison to Washington, Feb. 15, 1788; _ib._, 100.

[820] The Randolph-Clinton Correspondence; see _infra_, chap. x.

[821] Jay to Wolcott, mailed June 23, and received by Wolcott Aug. 16,
1794; Gibbs, i, 157.

[822] _Ib._, 160.

[823] Jefferson to Short, Nov. 21, 1789; _Works_: Ford, vi, 20.

[824] So notorious was this practice that important parts of the
correspondence of the more prominent politicians and statesmen of the
day always were written in cipher. Jefferson, Madison, and Monroe appear
to have been especially careful to take this precaution. (See
Washington's complaint of this tampering with the mails in a letter to
Fairfax, June 25, 1786; _Writings_: Sparks, ix, 175.) Habitual violation
of the mails by postmasters continued into the first decades of the
nineteenth century.

[825] Washington to Lafayette, Feb. 7, 1788; _Writings_: Ford, xi, 218.

[826] Kettell, in _Eighty Years' Progress_, ii, 174.

[827] _Pa. Mag. Hist. and Biog._, ix, 444.

[828] _Am. Ant. Soc. Pubs._, xxiii, Part ii, 254-330.

[829] Goodrich, i, 61.

[830] Schoepf, ii, 61; see note, _ib._ Even this journal died for want
of subscribers.

[831] Salem _Gazette_, Sept. 13, 1791; Hist. Col., Topsfield (Mass.)
Hist. Soc., iii, 10.

[832] Washington to Humphreys, Dec. 26, 1786; _Writings_: Ford, xi,
98-103.

[833] Washington to General Knox, Dec. 26, 1786; _ib._, 103-05.

[834] _Writings_: Smyth, x, 36 _et seq._ This arraignment of the press
by America's first journalist was written when Franklin was eighty-three
years old and when he was the most honored and beloved man in America,
Washington only excepted. It serves not only to illuminate the period of
the beginning of our Government, but to measure the vast progress during
the century and a quarter since that time.

[835] Jefferson to Mrs. Adams, Paris, Sept. 25, 1785; _Works_: Ford, iv,
465.

[836] "Country Printer," in Freneau, iii, 60. Freneau thus describes the
country editor of that day:--

  "Three times a week, by nimble geldings drawn,
  A stage arrives; but scarcely deigns to stop.
  Unless the driver, far in liquor gone,
  Has made some business for the black-smith-shop;
  Then comes this printer's harvest-time of news,
  Welcome alike from Christians, Turks, or Jews.

  "Each passenger he eyes with curious glance,
  And, if his phiz be mark'd of courteous kind,
  To conversation, straight, he makes advance,
  Hoping, from thence, some paragraph to find,
  Some odd adventure, something new and rare,
  To set the town a-gape, and make it stare.

  "All is not Truth ('tis said) that travellers tell--
  So much the better for this man of news;
  For hence the country round, that know him well,
  Will, if he prints some lies, his lies excuse.
  Earthquakes, and battles, shipwrecks, myriads slain--
  If false or true--alike to him are gain.

  "Ask you what matter fills his various page?
  A mere farrago 'tis, of mingled things;
  Whate'er is done on Madam Terra's stage
  He to the knowledge of his townsmen brings:
  One while, he tells of monarchs run away;
  And now, of witches drown'd in Buzzard's bay.

  "Some miracles he makes, and some he steals;
  Half Nature's works are giants in his eyes;
  Much, very much, in wonderment he deals,--
  New-Hampshire apples grown to pumpkin size,
  Pumpkins almost as large as country inns,
  And ladies bearing, each,--three lovely twins."

Freneau was himself a country printer in New Jersey, after editing the
_National Gazette_ in Philadelphia. Thus the above description was from
his personal experience and in a town in a thickly settled part, on the
main road between New York and Philadelphia.

[837] Goodrich, i, 38.

[838] A letter from Salem Town about 1786-87; in _American Journal of
Education_, xiii, 738.

[839] Van Santvoord: _Memoirs of Eliphalet Nott_, 19.

[840] Davis, 333.

[841] "Many cannot read or write, and many that can, know nothing of
geography and other branches. The country is too thinly settled to carry
out a system of common schools." (Howe, 153, speaking of western
Virginia about 1830.)

[842] Weld, i, 168. But President Tyler says that the boys Weld saw were
grammar-school pupils.

[843] Watson, 269.

[844] Chastellux, 319-20.

[845] De Warville, 126-27.

[846] _Ib._, 145 and 450.

[847] _Ib._, 145. All travelers agree as to the wretched condition of
Rhode Island; and that State appears to have acted as badly as it
looked. "The ... infamous [scenes] in Rhode Island have done
inexpressable injury to the Republican character," etc. (Madison to
Pendleton, Feb. 24, 1787; _Writings_: Hunt, ii, 319.)

[848] De Warville, 132.

[849] Weld, i, 113.

[850] De Warville, 186-87.

[851] De Warville, 186 and 332. See La Rochefoucauld's description of
this same type of settler as it was several years after De Warville
wrote. "The Dwellings of the new settlers ... consist of huts, with
roofs and walls which are made of bark and in which the husband, wife
and children pass the winter wrapped up in blankets.... Salt pork and
beef are the usual food of the new settlers; their drink is water and
whiskey." (La Rochefoucauld, i, 293-96.)

[852] Freneau, iii, 74.

[853] Knox to Washington, Feb. 10, 1788; _Writings_: Ford, xi, footnote
to 229. And see _infra_, chap. VIII.

[854] De Warville, 187. In 1797, La Rochefoucauld speaks of "the
credulity and ignorance of the half-savage sort of people who inhabit
the back settlements." (La Rochefoucauld, i, 293.)

[855] "A relaxation is observable among all orders of society.
Drunkenness is the prevailing vice, and with few exceptions, the source
of all other evils. A spirit, or rather a habit, of equality is diffused
among this people as far as it possibly can go.... The inhabitants
exhibit to strangers striking instances both of the utmost cleanliness
and excessive nastiness," (La Rochefoucauld, i, 125.)

During Washington's second term as President, La Rochefoucauld thus
describes manners in western Pennsylvania: "They are much surprised at a
refusal to sleep with one, two, or more men, in the same bed, or between
dirty sheets, or to drink after ten other persons out of the same dirty
glass.... Whiskey mixed with water is the common drink in the country."
(_Ib._)

[856] _Ib._, i, 293-96. See _infra_, note 4, pp. 281-82.

[857] Watson, 266.

[858] "You see [in Maryland and Virginia] real misery and apparent
luxury insulting each other." (De Warville, 159.)

[859] Chastellux, 279, and translator's note.

[860] Anburey, ii, 331-32.

[861] De Warville, 242.

[862] "Soon after entering Virginia, and at a highly respectable house,
I was shocked ... at seeing for the first time, young negroes of both
sexes, from twelve even to fifteen years old, not only running about the
house but absolutely tending table, as naked as they came into the
world.... Several young women were at the table, who appeared totally
unmoved." (Watson, 33.) Watson's statement may perhaps be questionable;
a livelier description, however, was given with embellishments, some
years later. (See translator's note to Chastellux, 245; and see Schoepf,
ii, 47.)

[863] Anburey, ii, 331-32.

[864] _Ib._, 332-33.

[865] Weld, i, 192. See Weld's description of "gouging." And see
Fithian's interesting account; Fithian, 242-43.

[866] Schoepf, ii, 89.

[867] _Ib._, 91-95.

[868] Jefferson to Chastellux, Sept. 2, 1785; _Thomas Jefferson
Correspondence_, Bixby Collection: Ford, 12; and see Jefferson to
Donald, July 28, 1787; Jefferson's _Writings_: Washington, ii, 193,
where Jefferson says that the qualities of Virginians are "indolence,
extravagance, and infidelity to their engagements."

[869] Weld, i, 199.

[870] Schoepf, ii, 34. This strange phenomenon was witnessed everywhere,
even in a place then so far remote as Maine. "Elegant women come out of
log or deal huts [in Maine] all wearing fashionable hats and head
dresses with feathers, handsome cloaks and the rest of their dress
suitable to this." (La Rochefoucauld, ii, 314.)

[871] _Ib._, 89; and Weld, i, 199, 236. The reports of all travelers as
to the want of fresh meat in the Valley are most curious. That region
was noted, even in those early days, for its abundance of cattle.

[872] _Ib._, 144.

[873] "Notes on Virginia": Jefferson; _Works_: Ford, iv, 69; and see
Weld, i, 114, for similar diet in Pennsylvania.

[874] _Ib._, 183-84.

[875] Weld, i, 206. "Sigars and whiskey satisfy these good people who
thus spend in a quarter of an hour in the evening, the earnings of a
whole day. The landlord of the Inn has also a distillery of whiskey,"
writes La Rochefoucauld, in 1797, of the mountain people of Virginia. He
thus describes the houses and people living in the valley towards
Staunton: "The habitations are in this district more numerous than on
the other side of the Blue Mountains, but the houses are miserable;
mean, small log houses, inhabited by families which swarm with children.
There exists here the same appearance of misery as in the back parts of
Pennsylvania." (La Rochefoucauld, iii, 173-76.)

[876] "It took a good deal of New England rum to launch a 75 ton
schooner ... to raise a barn ... or to ordain a regular minister....
Workingmen in the fields, in the woods, in the mills and handling logs
and lumber on the river were supplied with regular rations of spirits."
(Maine Hist. Soc. Col. (2d Series), vi, 367-68.)

The rich people of Boston loved picnic parties in the near-by country,
at which was served "Punch, warm and cold, before dinner; excellent
beef, Spanish and Bordeaux wines, cover their tables ... Spruce beer,
excellent cyder, and Philadelphia porter precede the wines." (De
Warville, 58.) This inquiring Frenchman called on Hancock, but found
that he had a "marvelous gout which dispenses him from all attentions
and forbids the access to his house." (_Ib._, 66.) As to New England
country stores, "you find in the same shop, hats, nails, liquors."
(_Ib._, 127.)

[877] La Rochefoucauld, iv, 577.

[878] Washington to Green (an employee) March 31, 1789; _Writings_:
Ford, xi, 377.

[879] _Memoirs of Talleyrand_: Broglie's ed., i, footnote to 181; and
see Talleyrand's description of a brandy-drinking bout at this house in
which he participated.

[880] Schoepf, ii, 47.

[881] Watson, 252.

[882] Chastellux, 224; see also 243.

[883] La Rochefoucauld, iv, 119.

[884] _Ib._, 590.

[885] See _infra_, II, chap. II.

[886] De Warville, 262.

[887] Watson, 261-62. "The indolence and dissipation of the middling and
lower classes of white inhabitants in Virginia are such as to give
pain.... Horse-racing, cock-fighting, and boxing-matches are standing
amusements, for which they neglect all business." (_Ib._; and see
Chastellux, 292, translator's note. Also see Chastellux's comments on
the economic conditions of the Virginians, 291-93.) For habits of
Virginians nearly twenty years after Watson wrote, see La Rochefoucauld,
iii, 75-79.

[888] "The session assembles here, besides the neighboring judges,
lawyers, and parties whose causes are to be tried, numbers of idle
people who come less from desire to learn what is going forward than to
drink together," says La Rochefoucauld; and see his picturesque
description of his arrival at the close of court day at Goochland
Court-House. (La Rochefoucauld, iii, 126-29.)

[889] One man to every five men, women, and children, which is a high
estimate.

[890] Madison to Jefferson, Aug. 12, 1786; _Writings_: Hunt, ii, 261.

[891] Randolph in the Virginia Constitutional Convention estimated that
the colonies could have put four hundred thousand soldiers in the field.
(Elliott, iii, 76-77.)

[892] It is a curious fact, however, that in his journey through France
Jefferson observed no bad conditions, but, on the whole, his careful
diary states that he found the people "well clothed and well fed," as
Professor Hazen expresses it. For impartial treatment of this subject
see Hazen, 1-21.




CHAPTER VIII

POPULAR ANTAGONISM TO GOVERNMENT

    Mankind, when left to themselves, are unfit for their own
    government. (George Washington, 1786.)

    There are subjects to which the capacities of the bulk of mankind
    are unequal and on which they must and will be governed by those
    with whom they happen to have acquaintance and confidence. (James
    Madison, 1788.)

    I fear, and there is no opinion more degrading to the dignity of
    man, that these have truth on their side who say that man is
    incapable of governing himself. (John Marshall, 1787.)


"Government, even in its best state," said Mr. Thomas Paine during the
Revolution, "is but a necessary evil."[893] Little as the people in
general had read books of any kind, there was one work which most had
absorbed either by perusal or by listening to the reading of it; and
those who had not, nevertheless, had learned of its contents with
applause.

Thomas Paine's "Common Sense," which Washington and Franklin truly said
did so much for the patriot cause,[894] had sown dragon's teeth which
the author possibly did not intend to conceal in his brilliant lines.
Scores of thousands interpreted the meaning and philosophy of this
immortal paper by the light of a few flashing sentences with which it
began. Long after the British flag disappeared from American soil, this
expatriated Englishman continued to be the voice of the people;[895] and
it is far within the truth to affirm that Thomas Paine prepared the
ground and sowed the seed for the harvest which Thomas Jefferson
gathered.

"Government, like dress, is the badge of lost innocence; the palaces of
kings are built on the ruins of the bowers of paradise." And again,
"Society is produced by our wants, and government by our
wickedness."[896] So ran the flaming maxims of the great iconoclast; and
these found combustible material.

Indeed, there was, even while the patriots were fighting for our
independence, a considerable part of the people who considered "all
government as dissolved, and themselves in a state of absolute liberty,
where they wish always to remain"; and they were strong enough in many
places "to prevent any courts being opened, and to render every attempt
to administer justice abortive."[897] Zealous bearers, these, of the
torches of anarchy which Paine's burning words had lighted. Was it not
the favored of the earth that government protected? What did the poor
and needy get from government except oppression and the privilege of
dying for the boon? Was not government a fortress built around property?
What need, therefore, had the lowly for its embattled walls?

Here was excellent ammunition for the demagogue. A person of little
ability and less character always could inflame a portion of the people
when they could be assembled. It was not necessary for him to have
property; indeed, that was a distinct disadvantage to the Jack Cades of
the period.[898] A lie traveled like a snake under the leaves and could
not be overtaken;[899] bad roads, scattered communities, long distances,
and resultant isolation leadened and delayed the feet of truth. Nothing
was too ridiculous for belief; nothing too absurd to be credited.

A Baptist preacher in North Carolina was a candidate for the State
Convention to pass upon the new National Constitution, which he bitterly
opposed. At a meeting of backwoodsmen in a log house used for a church,
he told them in a lurid speech that the proposed "Federal City" (now the
District of Columbia) would be the armed and fortified fortress of
despotism. "'This, my friends,' said the preacher, 'will be walled in or
fortified. Here an army of 50,000, or, perhaps 100,000 men, will be
finally embodied and will sally forth, and enslave the people who will
be gradually disarmed.'" A spectator, who attempted to dispute this
statement, narrowly escaped being mobbed by the crowd. Everything
possible was done to defeat this ecclesiastical politician; but the
people believed what he said and he was elected.[900]

So bizarre an invention as the following was widely circulated and
generally believed as late as 1800: John Adams, it was said, had
arranged, by intermarriage, to unite his family with the Royal House of
Great Britain, the bridegroom to be King of America. Washington, attired
in white clothing as a sign of conciliation, called on Adams and
objected; Adams rebuffed him. Washington returned, this time dressed in
black, to indicate the solemnity of his protest. Adams was obdurate.
Again the Father of his Country visited the stubborn seeker after
monarchical relationship, this time arrayed in full regimentals to show
his earnestness; Adams was deaf to his pleas. Thereupon the aged warrior
drew his sword, avowing that he would never sheathe it until Adams gave
up his treasonable purpose; Adams remained adamant and the two parted
determined enemies.[901]

Such are examples of the strange tales fed to the voracious credulity of
the multitude. The attacks on personal character, made by setting loose
against public men slanders which flew and took root like thistle seed,
were often too base and vile for repetition at the present day, even as
a matter of history; and so monstrous and palpably untruthful that it is
difficult to believe they ever could have been circulated much less
credited by the most gossip-loving.

Things, praiseworthy in themselves, were magnified into stupendous and
impending menaces. Revolutionary officers formed "The Society of the
Cincinnati" in order to keep in touch with one another, preserve the
memories of their battles and their campfires, and to support the
principles for which they had fought.[902] Yet this patriotic and
fraternal order was, shouted the patriots of peace, a plain attempt to
establish an hereditary nobility on which a new tyranny was to be
builded. Jefferson, in Paris, declared that "the day ... will certainly
come, when a single fibre of this institution will produce an
hereditary aristocracy which will change the form of our governments
[Articles of Confederation] from the best to the worst in the
world."[903]

Ædanus Burke,[904] one of the Justices of the Supreme Court of South
Carolina, wrote that the Society of the Cincinnati was "deeply planned";
it was "an hereditary peerage"; it was "planted in a fiery hot ambition,
and thirst for power"; "its branches will end in Tyranny ... the country
will be composed only of two ranks of men, the patricians, or nobles,
and the rabble."[905] In France, Mirabeau was so aroused by Burke's
pamphlet that the French orator wrote one of his own. Mirabeau called
the Cincinnati "that nobility of barbarians, the price of blood, the
off-spring of the sword, the fruit of conquest." "The distinction of
Celts and Ostrogoths," exclaimed the extravagant Frenchman, "are what
they claim for their inheritance."[906]

The "Independent Chronicle" of Boston was so excited that it called on
"legislators, Governors, and magistrates _and their_ ELECTORS" to
suppress the Cincinnati because it "is concerted to establish a
complete and perpetual _personal_ discrimination between" its members
"and the whole remaining body of the people who will be styled
Plebeians."[907]

John Marshall was a member of this absurdly traduced patriotic
fraternity. So were his father and fellow officers of our War for
Independence. Washington was its commander. Were the grotesque charges
against these men the laurels with which democracy crowned those who had
drawn the sword for freedom? Was this the justice of liberty? Was this
the intelligence of the masses? Such must have been the queries that
sprang up in the minds of men like Marshall. And, indeed, there was
sound reason for doubt and misgiving. For the nightmares of men like
Burke and Mirabeau were pleasant dreams compared with the horrid visions
that the people conjured.

[Illustration]

Nor did this popular tendency to credit the most extraordinary tale,
believe the most impossible and outrageous scandal, or accept the most
impracticable and misshapen theory, end only in wholesome hatred of rank
and distinction. Among large numbers there was the feeling that equality
should be made real by a general division of property. Three years after
peace had been established, Madison said he "strongly suspected" that
many of the people contemplated "an abolition of debts public & private,
and a new division of property."[908] And Jay thought that "a reluctance
to taxes, an impatience of government, a rage for property, and
little regard to the means of acquiring it, together with a desire for
equality in all things, seem to actuate the mass of those who are uneasy
in their circumstances."[909] The greed and covetousness of the people
is also noted by all travelers.[910]

Very considerable were the obligations "public and private" which
Madison wrote his father that he "strongly suspected" a part of the
country intended to repudiate. The public debt, foreign and domestic, of
the Confederation and the States, at the close of the Revolutionary War,
appeared to the people to be a staggering sum.[911] The private debt
aggregated a large amount.[912] The financial situation was chaos. Paper
money had played such havoc with specie that, in Virginia in 1786, as we
have seen, there was not enough gold and silver to pay current
taxes.[913] The country had had bitter experience with a fictitious
medium of exchange. In Virginia by 1781 the notes issued by Congress
"fell to 1000 for 1," records Jefferson, "and then expired, as it had
done in other States, without a single groan."[914]

Later on, foreigners bought five thousand dollars of this Continental
scrip for a single dollar of gold or silver.[915] In Philadelphia,
toward the end of the Revolution, the people paraded the streets wearing
this make-believe currency in their hats, with a dog tarred and covered
with paper dollars instead of feathers.[916] For land sold by Jefferson
before paper currency was issued he "did not receive the money till it
was not worth Oak leaves."[917]

Most of the States had uttered this fiat medium, which not only
depreciated and fluctuated within the State issuing it, but made trade
between citizens of neighboring States almost impossible. Livingston
found it a "loss to shop it in New York with [New] Jersey Money at the
unconscionable discount which your [New York] brokers and merchants
exact; and it is as damnifying to deal with our merchants here [New
Jersey] in that currency, since they proportionably advance the price of
their commodities."[918] Fithian in Virginia records that: "In the
evening I borrowed of _Ben Carter_ 15/--I have plenty of money with me
but it is in Bills of Philadelphia Currency and will not pass at all
here."[919]

Virginia had gone through her trial of financial fiction-for-fact,
ending in a law fixing the scale of depreciation at forty to one, and in
other unique and bizarre devices;[920] and finally took a determined
stand against paper currency.[921] Although Virginia had burned her
fingers, so great was the scarcity of money that there was a formidable
agitation to try inflation again.[922] Throughout the country there once
more was a "general rage for paper money."[923] Bad as this currency
was, it was counterfeited freely.[924] Such coin as existed was cut and
clipped until Washington feared that "a man must travel with a pair of
money scales in his pocket, or run the risk of receiving gold of one
fourth less by weight than it counts."[925]

If there was not money enough, let the Government make more--what was a
government for if not for that? And if government could not make good
money, what was the good of government? Courts were fine examples of
what government meant--they were always against the common people. Away
with them! So ran the arguments and appeals of the demagogues and they
found an answer in the breasts of the thoughtless, the ignorant, and the
uneasy. This answer was broader than the demand for paper money, wider
than the protest against particular laws and specific acts of
administration. This answer also was, declared General Knox, "that the
property of the United States ... ought to be the common property of
all. And he that attempts opposition to this creed is an enemy to equity
and justice, and ought to be swept from off the face of the earth." Knox
was convinced that the discontented were "determined to annihilate all
debts, public and private."[926]

Ideas and purposes such as these swayed the sixteen thousand men who, in
1787, followed Daniel Shays in the popular uprising in Massachusetts
against taxes, courts, and government itself.[927] "The restlessness
produced by the uneasy situation of individuals, connected with lax
notions concerning public and private faith, and erroneous[928]
opinions which confound liberty with an exemption from legal control,
produced ... unlicensed conventions, which, after voting on their
own constitutionality, and assuming the name of the people, arrayed
themselves against the legislature," was John Marshall's summary of the
forces that brought about the New England rebellion.

The "army" of lawlessness, led by Shays, took the field, says Marshall,
"against taxes, and against the administration of justice; and the
circulation of a depreciated currency was required, as a relief from
the pressure of public and private burdens, which had become, it was
alleged, too heavy to be borne. Against lawyers and courts the strongest
resentments were manifested; and to such a dangerous extent were these
dispositions indulged, that, in many instances, tumultuous assemblages
of people arrested the course of law, and restrained the judges from
proceeding in the execution of their duty."

"The ordinary recourse to the power of the country was found
insufficient protection," records Marshall, "and the appeals made to
reason were attended with no beneficial effect. The forbearance of the
government was attributed to timidity rather than moderation, and the
spirit of insurrection appeared to be organized into a regular system
for the suppression of courts."[929] Such was Marshall's analysis of the
Northern convulsion; and thus was strengthened in him that tendency of
thought started at Valley Forge, and quickened in the Virginia House of
Delegates.

"It rather appears to me," wrote David Humphries to Washington, in an
attempt to explain the root of the trouble, "that there is a licentious
spirit prevailing among many of the people; a levelling principle; and a
desire of change; with a wish to annihilate all debts, public and
private."[930] Unjust taxes were given as the cause of the general
dislike of government, yet those who composed the mobs erupting from
this crater of anarchy, now located in New England, paid few or no
taxes.

"High taxes are the ostensible cause of the commotions, but that they
are the real cause is as far remote from truth as light from darkness,"
asserts Knox. "The people who are the insurgents have never paid any, or
but very little taxes," testifies this stanch Revolutionary officer.
"But," continues Knox, "they see the weakness of the government. They
feel at once their own poverty, compared with the opulent, and their own
force, and they are determined to make use of the latter, in order to
remedy the former."[931]

This condition brought to a head a distrust of the good sense, justice,
and moderation of the people, which had been forming in the minds of
many of the best and ablest men of the time.[932] "The knaves and fools
of this world are forever in alliance," was the conclusion reached in
1786[933] by Jay, who thought that the people considered "liberty and
licentiousness" as the same thing.[934] The patient but bilious
Secretary of State felt that "the wise and the good never form the
majority of any large society, and it seldom happens that their measures
are uniformly adopted, or that they can always prevent being overborne
themselves by the strong and almost never-ceasing union of the wicked
and the weak."[935] The cautious Madison was equally doubtful of the
people: "There are subjects to which the capacities of the bulk of
mankind are unequal and on which they must and will be governed by those
with whom they happen to have acquaintance and confidence" was Madison's
judgment.[936]

Washington, black with depression, decided and bluntly said "that
mankind, when left to themselves, are unfit for their own government."
Lee had suggested that Washington use his "influence" to quiet the
disorders in New England; but, flung back Washington, "_Influence_ is no
_government_. Let us have one by which our lives, liberties, and
properties will be secured, or let us know the worst at once.... To be
more exposed in the eyes of the world, and more contemptible than we
already are, is hardly possible."[937]

"No morn ever dawned more favorably than ours did; and no day was ever
more clouded than the present.... We are fast verging to anarchy,"[938]
cried the great captain of our war for liberty. The wings of
Washington's wrath carried him far. "Good God!" cried he, "Who, besides
a Tory, could have foreseen, or a Briton predicted" the things that were
going on! "The disorders which have arisen in these States, the present
prospect of our affairs ... seems to me to be like the vision of a
dream. My mind can scarcely realize it as a thing in actual
existence.... There are combustibles in every State, which a spark might
set fire to."[939]

Marshall echoed his old commander's views. The dreams of his youth were
fading, his confidence in the people declining. He records for us his
altered sentiments: "These violent, I fear bloody, dissensions in a
state [Massachusetts] I had thought inferior in wisdom and virtue to no
one in the union, added to the strong tendency which the politics of
many eminent characters among ourselves have to promote private and
public dishonesty, cast a deep shade over the bright prospect which the
revolution in America and the establishment of our free governments had
opened to the votaries of liberty throughout the globe. I fear, and
there is no opinion more degrading to the dignity of man, that these
have truth on their side who say that man is incapable of governing
himself."[940] Thus wrote Marshall in 1787, when he was not yet
thirty-two years old.

But Jefferson in Paris was beholding a different picture that
strengthened the views which he and Marshall held in common when
America, in arms, challenged Great Britain. "The Spirit of resistance to
government is so valuable on certain occasions that I wish it to be
always kept alive. It will often be exercised when wrong, but better so
than not to be exercised at all. I like a little rebellion now & then.
It is like a storm in the atmosphere." So wrote Jefferson after the
Massachusetts insurrection had been quelled.[941]

The author of our Declaration of Independence was tasting the delights
of the charming French Capital at this time, but he also was witnessing
the shallowness and stupidity of the peculiarly weak royalty and
nobility; and although it was this same Royal Government that had aided
us with men and money in our struggle to throw off the yoke of England,
Jefferson's heart grew wrathful against it and hot for popular rule in
France. Yet in the same apostrophe to rebellion, Jefferson declares that
the French people were too shallow for self-rule. "This [French]
nation," writes Jefferson, "is incapable of any serious effort but under
the word of command."[942]

After having had months to think about it, this enraptured enthusiast of
popular upheaval spread his wings and was carried far into crimson
skies. "Can history produce an instance of rebellion so honourably
conducted?" exclaimed Jefferson, of the Massachusetts anarchical
outburst, nearly a year after it had ended; and continued thus:--

"God forbid! we should ever be 20 years without such a rebellion....
What country can preserve its liberties if their rulers are not warned
from time to time that their people preserve the spirit of resistance?
Let them take arms!... What signify a few lives lost in a century or
two? The tree of liberty must be refreshed from time to time with the
blood of patriots & tyrants. It is its natural manure."[943]

Thus did his contact with a decadent monarchy on the one hand and an
enchanting philosophy on the other hand, help to fit him for the
leadership of American radicalism. No better training for that mission
could have been afforded. French thought was already challenging all
forms of existing public control; it was a spirit Gamaliel which found
in Jefferson an eager Saul at its feet; and American opinion was
prepared for its doctrines. In the United States general dislike and
denunciation of the established governments had uncovered the feeling
against government itself which lay at the root of opposition to any
stronger one.

The existing American system was a very masterpiece of weakness. The
so-called Federal Government was like a horse with thirteen bridle
reins, each held in the hands of separate drivers who usually pulled the
confused and powerless beast in different directions. Congress could
make treaties with foreign nations; but each of the States could and
often did violate them at will. It could borrow money, but could not
levy taxes or impose duties to pay the debt. Congress could get money
only by making humble requests, called "requisitions," on the
"sovereign" Commonwealths. It had to depend upon the whims of the
various States for funds to discharge principal and interest of public
obligations; and these springs of revenue, when not entirely dry,
yielded so little that the Federal establishment was like to die of
financial thirst.[944]

The requisitions of Congress upon the various States for money to pay
the National obligations to foreign creditors were usually treated with
neglect and often with contempt by those jealous and pompous
"Sovereignties." "Requisitions are a perfect nullity where thirteen
sovereign, independent, disunited States are in the habit of discussing
and refusing compliance with them at their option. Requisitions are
actually little better than a jest and a by-word throughout the land. If
you tell the legislatures they have violated the treaty of peace, and
invaded the prerogatives of the confederacy, they will laugh in your
face."[945] Thus raged Washington. "Congress cannot command money" even
to redeem Americans held in slavery in Algiers,[946] testified the
powerless and despondent Secretary of State. Indeed, Congress amounted
to so little that the delegates from many States often refused to
attend.[947]

Though debts were great and financial confusion maddening, they
furnished no solid excuse for the failure of the States to enable
Congress to preserve American honor by the payment of our admitted
National debt. Jay reviewed the situation and showed that "the resources
of the country ... notwithstanding all appearances to the contrary, are
abundant.... Our country is fertile, abounding in useful productions,
and those productions in demand and bearing a good price."[948] The
general opinion appears to have been that the people did not want to
support the Government.

"The treasury is empty, though the country abounds in resources, and our
people are far more unwilling than unable to pay taxes," wrote Jay,
early in 1787.[949] Madison excused his support of the bill authorizing
tobacco to be taken for specie in payment of taxes, upon the ground that
it "could not be rejected without ... exciting some worse project of a
popular cast";[950] and "by a fear that some greater evil under the name
of relief to the people would be substituted."[951] Debt "made it
extremely inconvenient to most people to submit to a regular
government," was the conclusion Rutledge finally reached.[952]

But, whatever the cause, the States did not act. Washington thought it a
combination of the scheming of demagogues and the ignorance and
dishonesty of the people. "I think there is more wickedness than
ignorance mixed in our councils.... Ignorance and design are difficult
to combat.... To be so fallen! so lost!... Virtue, I fear has in a great
degree taken its departure from our land and the want of a disposition
to do justice is the source of the national embarrassments; for,
whatever guise or colorings are given to them, this I apprehend is the
origin of the evils we now feel."[953] Such was Washington's cry of
despair four years after he had wrested American liberty from Great
Britain.

Look where one will among the class of men of whom Washington was the
highest representative, one finds that they believed the fountain head
of the country's desperate conditions to be in the people themselves.
Jay put this opinion in a nutshell when he said, "The mass of men are
neither wise nor good."[954] Not that these leaders despaired that an
American People would finally be evolved who should realize the exalted
expectations of the patriot leaders of the Revolution; not that out of
the flux of popular heedlessness and dishonor, indifference and
disorder, idleness and avarice, the nobler qualities of human nature
would not, in the end, bring forth a nation and rule it for the
happiness and well-being of its people. But they thought that only a
strong government could fashion the clay and breathe into its nostrils
the breath of life. "Virtue, like the other resources of a country, can
only be drawn to a point and exerted by strong circumstances ably
managed, or a strong government ably administered," said Jay.[955]

The shield of all this turmoil and baseness was the State Governments.
"Their unreasonable jealousy of that body [Congress] and of one
another ... will, if there is not a change in the system, be our
downfall as a nation," exclaimed Washington only a few months after
peace had been established.[956] It was the States, he declared, which
made the Federal establishment "a half-starved, limping government, that
appears to be always moving upon crutches and tottering at every
step."[957]

It was the States which always were thwarting every plan for the general
welfare; the States which were forever impairing the National
obligations; the States which bound hand and foot the straw man of the
central power, clothed it in rags and made it a mere scarecrow of
government. And it was State pride, prejudice, and ignorance which gave
provincial demagogues their advantage and opportunity. The State
Governments were the "people's" Governments; to yield State
"sovereignty" was to yield the "people's" power over their own affairs,
shouted the man who wished to win local prominence, power, and office.

Those who did not want to pay taxes and who disliked much government of
any kind felt that they could make shift with mere State
establishments.[958] "A thirst for power, and the bantling, I had liked
to have said monster for sovereignty, which have taken such fast hold of
the States individually, will, when joined by the many whose personal
consequence in the control of State politics will in a manner be
annihilated, form a strong phalanx against"[959] the National
Constitution, prophesied the leader of the Revolution.

But it was not alone the powerlessness of the Federal Government to keep
the National faith, plighted by solemn treaties with foreign
Governments; or to uphold the National honor by paying debts made to win
American independence, that wrought that bloodless revolution[960] which
produced the Constitution. Nor was it the proud and far-seeing plans of
a few great minds whose heart's desire was to make the American People a
Nation.

Finance, commerce, and business assembled the historic Philadelphia
Convention; although it must be said that statesmanship guided its
turbulent councils. The senseless and selfish nagging at trade in which
the States indulged, after peace was declared, produced a brood of civil
abuses as noisome as the military dangers which State control of troops
had brought forth during the Revolution. Madison truly said that "most
of our political evils may be traced up to our commercial ones."[961]
The States passed tariff laws against one another as well as against
foreign nations; and, indeed, as far as commerce was concerned, each
State treated the others as foreign nations.[962] There were
retaliations, discriminations, and every manner of trade restrictions
and impediments which local ingenuity and selfishness could devise.

The idea of each State was to keep money from going outside its borders
into other States and to build up its own business and prosperity at the
expense of its neighbors.[963] States having no seaports were in a
particularly hard case. Madison picturesquely describes their unhappy
plight: "New Jersey placed between Phil^a & N. York, was likened to a
cask tapped at both ends; And N. Carolina, between Virg^a & S. Carolina
to a patient bleeding at both Arms."[964] Merchants and commercial
bodies were at their wits' end to carry on business and petitioned for a
general power over commerce.[965]

The commercial view, as stated by Madison, was that "the National
Government should be armed with positive and compleat authority in all
cases which require uniformity; such as the regulation of trade,
including the right of taxing both exports & imports, the fixing the
terms and forms of naturalization, &c., &c."

Madison then lays down this extreme Nationalist principle as the central
article of his political faith: "Over and above this positive power, a
negative in _all cases whatsoever_ on the legislative acts of the
States, as heretofore exercised by the Kingly prerogative, appears to me
to be absolutely necessary, and to be the least possible encroachment on
the State jurisdictions. Without this defensive power, every positive
power that can be given on paper will be evaded & defeated. The States
will continue to invade the National jurisdiction, to violate treaties
and the law of nations & to harass each other with rival and spiteful
measures dictated by mistaken views of interest."[966]

Too much emphasis cannot be put upon the fact that the mercantile and
financial interests were the weightiest of all the influences for the
Constitution; the debtors and agricultural interests the strongest
groups against it. It deserves repetition, for a proper understanding of
the craft and force practiced by both sides in the battle over
ratification, that those who owed debts were generally against the
Constitution and practically all to whom debts were due were for the
new Government. "I have little prospect of bringing Banks [a debtor] to
terms as the Law of this State now stands," wrote a Virginia agent of a
creditor, "but I hope when the New Federal constitution is adopted that
the Laws will be put upon a better footing.... Three fourths of the
people that oppose it [the Constitution] are those that are deeply in
debt & do not wish to pay."[967]

London merchants were very anxious for a new order of things. "I hope
ere long your Federal Government will be established, and that honest
Men will again have the Assendency in your Country, for without such a
change it must ever remain a poor place to live in," was the opinion of
a business man living in the British Capital.[968]

A few weeks after Virginia ratified the Constitution, Minton Collins
reported to his principal about a person named Banks, who, says Collins,
"begins to be a little alarmed from the adoption of the Federal
Constitution. I hope it will alarm every such R[asca]l. He had run his
rig long enough for he boasts of being worth from 150,000£ to 200,000
pounds; this is not bad for a man that six years ago could scarcely
raise a suit of clothes to his back."[969]

Marshall was becoming a prosperous lawyer and his best clients were from
the mercantile interests. His family relationships were coming to be
more and more with the property classes. He had no ambition for a
political career, which might have given to his thinking and conclusions
a "more popular cast," to use Madison's contemptuous phrase. Thus
Marshall's economic and political convictions resulting from experience
and reasoning were in harmony with his business connections and social
environment.

Undoubtedly he would have taken the same stand had none of these
circumstances developed; his constructive mind, his conservative
temperament, his stern sense of honor, his abhorrence of disorder and
loose government, his army experience, his legislative schooling, his
fidelity to and indeed adoration of Washington, would have surely placed
him on the side of the Constitution. Still, the professional and social
side of his life should not be ignored, if we are to consider fully all
the forces which then surrounded him, and which, with ever-growing
strength, worked out the ultimate Marshall.

Jefferson, in France, experienced only the foreign results of the sharp
and painful predicament which John Marshall was sadly witnessing in
America. While not busy with the scholars and society of the French
Capital, Jefferson had been engaged in the unhappy official task of
staving off our French creditors and quieting, as well as he could,
complaints of our trade regulations and other practices which made it
hard and hazardous for the French to do business with us.[970] He found
that "the nonpaiment of our debts and the want of energy in our
government ... discourage a connection with us";[971] and "want of
punctuality & a habitual protection of the debtor" prevented him from
getting a loan in France to aid the opening of the Potomac.[972] All
this caused even Jefferson to respond to the demand for unifying the
American Government as to foreign nations; but he would not go further.
"Make the States one as to every thing connected with foreign nations, &
several as to everything purely domestic," counseled Jefferson while the
Constitutional Convention was quarreling at Philadelphia.[973]

But he did not think badly of the weakness of the Articles of
Confederation which so aroused the disgust, anger, and despair of
Washington, Madison, Jay, and other men of their way of thinking, who
were on the ground. "With all the imperfections of our present
government [Articles of Confederation]," wrote Jefferson in Paris, in
1787, "it is without comparison the best existing or that ever did
exist";[974] and he declared to one of his French friends that "the
confederation is a wonderfully perfect instrument."[975] Jefferson found
but three serious defects in the Articles of Confederation: no general
rule for admitting States; the apportionment of the State's quota of
money upon a land instead of a population basis; and the imperfect power
over treaties, import duties, and commerce.[976]

He frankly said: "I am not a friend to a very energetic government"; and
he thought that "our governments will remain virtuous for many
centuries"--but added with seer-like vision: "as long as ... there shall
be vacant lands in America."[977] Jefferson wished the United States "to
practice neither commerce nor navigation, but to stand with respect to
Europe precisely on the footing of China."[978] Far from thinking that
the low state of our credit was a bad thing for us, he believed that its
destruction would work an actual benefit to America. "Good will arise
from the destruction of our credit," he asserted in a letter to Stuart
written from Paris in 1786. "I see nothing else which can restrain our
disposition to luxury, and the loss of those manners which alone can
preserve republican government."[979]

We have now seen the state of the country and the condition of the
people, their situation and habits, their manner of life and trend of
feeling. We have witnessed the change thus wrought in the leading men
during this period, so destructive of confidence in the wisdom or virtue
of majorities, at least on first impulse and without abundant time for
reflection and second thought. Thus we have measured, with some degree
of accuracy, the broad and well-marked space that separated the hostile
forces which were to meet in what was for the moment a decisive conflict
when Virginia's Constitutional Convention should assemble at Richmond.

In one camp the uninformed and credulous, those who owed debts and
abhorred government, with a sprinkling among them of eminent, educated,
and well-meaning men who were philosophic apostles of theoretical
liberty; and in the other camp men of property and lovers of order, the
trading and moneyed interests whose first thought was business; the
veterans of the Revolution who had learned on the battlefield the need
of a strong central Government; and, here and there, a prophetic and
constructive mind who sought to build a Nation. John Marshall was one of
the latter; and so he promptly took his place by the side of his old
general and leader in the camp of the builders.

At last the supreme hour is striking. The Virginians, about to assemble
in State Convention, will determine the fate of that unauthorized and
revolutionary plan for a National Government,[980] the National
Constitution. The movement for a second general Convention to have
another try at framing a Constitution has made distinct progress by the
time the Virginia representatives gather at the State Capital.[981]
There is widespread, positive, and growing resentment at the proposed
new form of government; and if Virginia, the largest and most populous
of the States, rejects it, the flames of opposition are certain to break
out in every part of the country. As Washington asserts, there is,
indeed, "combustible material" everywhere.

Thus it is that the room where Virginia's Convention is about to meet in
June, 1788, will become the "bloody angle" in the first great battle for
Nationalism. And Marshall will be there, a combatant as he had been at
Great Bridge and Brandywine. Not for John Marshall the pallid rôle of
the trimmer, but the red-blooded part of the man of conviction.


FOOTNOTES:

[893] _Writings_: Conway, i, 69 _et seq._

[894] "_Common Sense_ had a prodigious effect." (Franklin to Le
Veillard, April 15, 1787; _Writings_: Smyth, ix, 558.) "Its popularity
was unexampled.... The author was hailed as our angel sent from Heaven
to save all from the horrors of Slavery.... His pen was an appendage [to
the army] almost as necessary and formidable as its cannon."
(Cheetenham, 46-47, 55.) In America alone 125,000 copies of _Common
Sense_ were sold within three months after the pamphlet appeared.
(Belcher, i, 235.)

"Can nothing be done in our Assembly for poor Paine? Must the merits of
_Common Sense_ continue to glide down the stream of time unrewarded by
this country? His writings certainly have had a powerful effect upon the
public mind. Ought they not, then, to meet an adequate return?"
(Washington to Madison, June 12, 1784; _Writings_: Ford, x, 393; and see
Tyler, i, 458-62.) In the Virginia Legislature Marshall introduced a
bill for Paine's relief. (_Supra_, chap, VI.)

[895] Graydon, 358.

[896] _Common Sense_: Paine; _Writings_: Conway, i, 61. Paine's genius
for phrase is illustrated in the _Crisis_, which next appeared. "These
are the times that try men's souls"; "Tyranny like hell, is not easily
conquered"; "The summer soldier and the sunshine patriot," are examples
of Paine's brilliant gift.

[897] Moore's _Diary_, ii, 143-44. Although this was a British opinion,
yet it was entirely accurate.

[898] "They will _rise_ and for lack of argument, say, M^r. Speaker,
this measure will never do, the _People_ Sir, will never bear it....
These small Politicians, returned home, ... tell their Constituents such
& such measures are taking place altho' I did my utmost to prevent
it--The People must take care of themselves or they are undone. Stir up
a County Convention and by Trumpeting lies from Town to Town get one [a
convention] collected and Consisting of Persons of small Abilities--of
little or no property--embarrass'd in their Circumstances--and of no
great Integrity--and these Geniouses vainly conceiving they are
competent to regulate the affairs of State--make some hasty incoherent
Resolves, and these end in Sedition, Riot, & Rebellion." (Sewell to
Thatcher, Dec., 1787; _Hist. Mag._ (2d Series), vi, 257.)

[899] More than a decade after the slander was set afoot against Colonel
Levin Powell of Loudoun County, Virginia, one of the patriot soldiers of
the Revolution and an officer of Washington, that he favored
establishing a monarchy, one of his constituents wrote that "detraction
& defamation are generally resorted to promote views injurious to
you.... Can you believe it, but it is really true that the old & often
refuted story of your predilection for Monarchy is again revived."
(Thomas Sims to Colonel Levin Powell, Leesburg, Virginia, Feb. 5 and 20,
1801; _Branch Historical Papers_, i, 58, 61.)

[900] Watson, 262-64. This comic prophecy that the National Capital was
to be the fortified home of a standing army was seriously believed by
the people. Patrick Henry urged the same objection with all his dramatic
power in the Virginia Convention of 1788. So did the scholarly Mason.
(See _infra_, chaps. XI and XII.)

[901] Graydon, 392-93.

[902] _Memorials of the Society of the Cincinnati_, 1790, 3-24.

[903] Jefferson to Washington, Nov. 14, 1786; _Works_: Ford, v, 222-23;
and see Jefferson's denunciation of the Cincinnati in Jefferson to
Madison, Dec. 28, 1794; _ib._, viii, 156-57. But see Jefferson's fair
and moderate account of the Cincinnati before he had learned of its
unpopularity in America. (Jefferson to Meusnier, June 22, 1786; _ib._,
V, 50-56.)

[904] The same who broke the quorum in the Continental Congress.
(_Supra_, chap. IV.)

[905] Burke: _Considerations on the Society of the Order of Cincinnati_;
1784.

[906] Mirabeau: _Considerations on the Order of Cincinnati_; 1786.
Mirabeau here refers to the rule of the Cincinnati that the officer's
eldest son might become a member of the order, as in the Military Order
of the Loyal Legion of the present time.

[907] As quoted in Hudson: _Journalism in the United States_, 158.

[908] Madison to James Madison, Nov. 1, 1786; _Writings_: Hunt, ii, 278.

[909] Jay to Jefferson, Oct. 27, 1786; _Jay_: Johnston, iii, 212.

[910] See Weld, i, 114-15, as a fair example of foreign estimate of this
American characteristic at that period.

[911] See chap. II, vol. II, of this work.

[912] Private debts which Virginia planters alone owed British merchants
were "20 or 30 times the amount of all money in circulation in that
state." (Jefferson to Meusnier, Jan. 24, 1786; _Works_: Ford, v, 17-18;
and see Jefferson to McCaul, April 19, 1786; _ib._, 88.)

[913] "It cannot perhaps be affirmed that there is gold & silver en^o in
the Country to pay the next tax." (Madison to Monroe, June 4, 1786;
_Writings_: Hunt, ii, 245.)

[914] Jefferson to Meusnier, Jan. 24, 1786; _Works_: Ford, v, 27.

[915] Jefferson to Meusnier, Jan. 24, 1786: _Works_: Ford, v, 27.

[916] Moore's _Diary_, ii, 425-26. The merchants of Philadelphia shut
their shops; and it was agreed that if Congress did not substitute
"solid money" for paper, "all further resistance to" Great Britain "must
be given up." (_Ib._)

[917] Jefferson to McCaul, April 19, 1786; _Works_: Ford, v, 90; also to
Wm. Jones, Jan. 5, 1787; _ib._, 247.--"Paiment was made me in this money
when it was but a shadow."

[918] Livingston to Jay, July 30, 1789; _Jay_: Johnston, iii, 373-74.

[919] Fithian, 91.

[920] Virginia's paper money experiment was the source of many lawsuits
in which Marshall was counsel. See, for example, Pickett _vs._ Claiborne
(Call, iv, 99-106); Taliaferro _vs._ Minor (Call, i, 456-62).

[921] The House of Delegates toward the end of 1786 voted 84 to 17
against the paper money resolution. (Madison to James Madison, Nov. 1,
1786; _Writings_: Hunt, ii, 277.)

[922] "The advocates for paper money are making the most of this handle.
I begin to fear exceedingly that no efforts will be sufficient to parry
this evil." (Madison to Monroe, June 4, 1786; _ib._, 245.)

[923] Madison to Jefferson, Aug. 12, 1786; _ib._, 259.

[924] "Enclosed are one hundred Dollars of new Emmission Money which
Col. Steward desires me to have exchanged for Specie. Pray, inform him
they are all counterfeit." (Gerry to King, April 7, 1785; King, i, 87.)

[925] Washington to Grayson, Aug. 22, 1785; _Writings_: Ford, X, 493-94.

[926] Knox to Washington, Oct. 28, 1786; _Writings_: Hunt, ii, footnote
to p. 407-08.

[927] Minot: _History of the Insurrections in Massachusetts in 1786_ (2d
ed.), 1810.

[928] Printed in the first edition (1807) "enormous"--a good example of
the haste of the first printing of Marshall's _Life of Washington_. (See
vol. III of this work.)

[929] Marshall, ii, 117.

[930] _Ib._, 118.

[931] Knox to Washington, Oct. 28, 1786; _Writings_: Hunt, ii, footnote
to 408.

[932] Shays's Rebellion was only a local outburst of a general
feeling throughout the United States. Marshall says, "those causes of
discontent ... existed in every part of the union." (Marshall, ii, 117.)

[933] Jay to Jefferson, Oct. 27, 1786; _Jay_: Johnston, iii, 213.

[934] Jay to Reed, Dec. 12, 1786; _ib._, 222.

[935] Jay to Price, Sept. 27, 1786; _ib._, 168.

[936] Madison to Randolph, Jan. 10, 1788; _Writings_: Hunt, v, 81.

[937] Washington to Lee, Oct. 31, 1786; _Writings_: Ford, xi, 76-77.

[938] Washington to Madison, Nov. 5, 1786; _ib._, 81.

[939] Washington to Knox, Dec. 26, 1786; _ib._, 103-04. And Washington
wrote to Lafayette that "There are seeds of discontent in every part of
the Union." (_Writings_: Sparks, ix, 263.)

[940] Marshall to James Wilkinson, Jan. 5, 1787; _Amer. Hist. Rev._,
xii, 347-48.

[941] Jefferson to Mrs. Adams, Feb. 22, 1787; _Works_: Ford, v, 265.

[942] Jefferson to Mrs. Adams, Feb. 22, 1787; _Works_: Ford, v, 263.

[943] Jefferson to Smith, Nov. 13, 1787; _ib._, 362.

[944] "The payments from the States under the calls of Congress have
in no year borne any proportion to the public wants. During the last
year ... the aggregate payments ... fell short of 400,000 doll^{rs}, a
sum neither equal to the interest due on the foreign debts, nor even to
the current expenses of the federal Government. The greatest part of
this sum too went from Virg^a, which will not supply a single shilling
the present year." (Madison to Jefferson, March 18, 1786; _Writings_:
Hunt, ii, 228.)

[945] Washington to Jay, Aug. 1, 1786; _Writings_: Ford, xi, 54-55.

[946] Jay (Secretary of State under the Confederation) to Jefferson,
Dec. 14, 1786; _Jay_: Johnston, iii, 223.

[947] "We are wasting our time & labour in vain efforts to do business"
(because of State delegates not attending), wrote Jefferson in 1784.
(Jefferson to Washington, March 15, 1784; _Works_: Ford, iv, 266.) And
at the very climax of our difficulties "a sufficient number of States to
do business have not been represented in Congress." (Jay to Wm.
Carmichael, Jan. 4, 1786; _Jay_: Johnston, iii, 225.) During half of
September and all of October, November, December, January, and February,
nine States "have not been represented in congress"; and this even after
the Constitution had been adopted. (Jay to Jefferson, March 9, 1789;
_Jay_: Johnston, iii, 365.)

[948] Jay to Jefferson, Dec. 14, 1786; _Jay_: Johnston, iii, 223-24. And
Melancton Smith declared that "the farmer cultivates his land and reaps
the fruit.... The merchant drives his commerce and none can deprive him
of the gain he honestly acquires.... The mechanic is exercised in his
art, and receives the reward of his labour." (1797-98; Ford: _P. on C._,
94.) Of the prosperity of Virginia, Grigsby says, "our agriculture was
most prosperous, and our harbors and rivers were filled with ships. The
shipping interest ... was really advancing most rapidly to a degree of
success never known in the colony." (Grigsby, i, footnote to p. 82; and
see his brilliant account of Virginia's prosperity at this time; _ib._,
9-19.) "The spirit of industry throughout the country was never greater.
The productions of the earth abound," wrote Jay to B. Vaughan, Sept. 2,
1784. (_Jay_: Johnston, iii, 132.)

[949] Jay to John Adams, Feb. 21, 1787; _Jay_: Johnston, iii, 235. Jay
thought that the bottom of the trouble was that "relaxation in
government and extravagance in individuals create much public and
private distress, and much public and private want of good faith."
(_Ib._, 224.)

[950] Madison to Jefferson, Dec. 4, 1786; _Writings_: Hunt, ii, 293.
"This indulgence to the people as it is called & considered was so
warmly wished for out of doors, and so strenuously pressed within that
it could not be rejected without danger of exciting some worse project
of a popular cast." (_Ib._)

[951] Madison to Washington, Dec. 24, 1786; _ib._, 301. "My acquiescence
in the measure was against every general principle which I have
embraced, and was extorted by a fear that some greater evil under the
name of relief to the people would be substituted." (_Ib._)

[952] Rutledge to Jay, May 2, 1789; _Jay_: Johnston, iii, 368.

[953] Washington to Jay, May 18, 1786; _Writings_: Ford, xi, 31-32.

[954] Jay to Washington, June 27, 1786; _Jay_: Johnston, iii, 204.

[955] _Ib._, 205.

[956] Washington to Harrison, Jan. 18, 1784; _Writings_: Ford, x, 345.

[957] _Ib._

[958] See Madison's masterful summary of the wickedness, weakness, and
folly of the State Governments in _Writings_: Hunt, ii, 361-69.

[959] Washington to Jay, March 10, 1787; _Writings_: Ford, xi, 125.

[960] See _supra_, chap. VI.

[961] Madison to Jefferson, March 18, 1786; _Writings_: Hunt, ii, 228.
"Another unhappy effect of a continuance of the present anarchy of our
commerces will be a continuance of the unfavorable balance on it, which
by draining us of our metals, furnishes pretexts for the pernicious
substitution of paper money, for indulgencies to debtors, for
postponements of taxes." (_Ib._)

[962] Virginia carefully defined her revenue boundaries as against
Pennsylvania and Maryland; and provided that any vessel failing to enter
and pay duties as provided by the Virginia tariff laws might be seized
by any person and prosecuted "one half to the use of the informer, and
the other half to the use of the commonwealth." (Va. Statutes at Large
(1785), chap. 14, 46.)

Virginia strengthened her tariff laws against importations by land. "If
any such importer or owner shall unload any such wagon or other carriage
containing any of the above goods, wares, or merchandise brought into
this state by land without first having entered the same as directed
above, every such wagon or other carriage, together with the horses
thereto belonging and all such goods wares and merchandise as shall be
brought therein, shall be forfeited and recovered by information in the
court of the county; two-thirds to the informer and one-third toward
lessening the levy of the county where such conviction shall be made."
(_Ib._)

Even Pennsylvania, already the principal workshop of the country, while
enacting an avowedly protective tariff on "Manufactures of Europe and
Other foreign parts," included "cider, malted barley or grain, fish,
salted or dried, cheese, butter, beef, pork, barley, peas, mustard,
manufactured tobacco" which came, mostly, from sister States. The
preamble declares that the duties are imposed to protect "the artisans
and mechanics of this state" without whose products "the war could not
have been carried on."

In addition to agricultural articles named above, the law includes
"playing cards, hair powder, wrought gold or silver utensils, polished
or cut stones, musical instruments, walking canes, testaments, psalters,
spelling books or primers, romances, novels and plays, and horn or
tortoise shell combs," none of which could be called absolutely
indispensable to the conduct of the war. The preamble gives the usual
arguments for protective tariffs. It is the first protective tariff law,
in the present-day sense, ever passed. (Pa. Statutes at Large (1785),
99.)

[963] Even at the present time the various States have not recovered
from this anti-National and uneconomic practice, as witness the tax laws
and other statutes in almost every State designed to prevent investments
by the citizens of that State in industries located in other States.
Worse, still, are the multitude of State laws providing variable control
over railways that are essentially National.

[964] _Writings_: Hunt, ii, 395.

[965] Marshall (1st ed.), v, 76-79.

[966] Madison to Washington, April 16, 1787; _Writings_: Hunt, ii,
345-46. This ultra-Nationalist opinion is an interesting contrast to
Madison's States' Rights views a few years later. (See _infra_, vol. II,
chaps. II, III, and IV.)

[967] Minton Collins at Richmond to Stephen Collins at Philadelphia, May
8, 1788; MS., Lib. Cong.

[968] Sam Smith in London to Stephen Collins in Philadelphia, July 21,
1788; _ib._

[969] Minton Collins to Stephen Collins, Aug. 9, 1788; _ib._

[970] "Vergennes complained, and with a good deal of stress, that they
did not find a sufficient dependence on arrangements taken with us. This
was the third time, too, he had done it.... He observed too, that the
administration of justice with us was tardy, insomuch that their
merchants, when they had money due to them within our States, considered
it as desperate; and that our commercial regulations, in general, were
disgusting to them." (Jefferson's Report; _Works_: Ford, iv, 487.)

[971] Jefferson to Stuart, Jan. 25, 1786; _ib._, v, 74.

[972] Jefferson to Madison, Dec. 16, 1786; _ib._, v, 230.

[973] Jefferson to Carrington, Paris, Aug. 4, 1787; _ib._, 318; also
332; and Jefferson to Wythe, Sept. 16, 1787; _ib._, 340.

[974] Jefferson to Carrington, Paris, Aug. 4, 1787; _ib._, 318.

[975] Jefferson to Meusnier, Jan. 24, 1786; _ib._, 8.

[976] Jefferson to Meusnier, Jan. 24, 1786; _Works_: Ford, v, 8.

[977] Jefferson to Madison, Dec. 20, 1787; _ib._, 373-74. Jefferson
concluded, prophetically, that when the people "get piled upon one
another, in large cities, as in Europe, they will become as corrupt as
Europe." (_Ib._)

[978] Jefferson to Hogendorp, Oct. 13, 1785; _ib._, iv, 469.

[979] Jefferson to Stuart, Jan. 25, 1786; _ib._, v, 74.

[980] See _infra_, chap. IX.

[981] For a careful study of this important but neglected subject see
Professor Edward Payson Smith's paper in Jameson, 46-115.




CHAPTER IX

THE STRUGGLE FOR RATIFICATION

    The plot thickens fast. A few short weeks will determine the
    political fate of America. (Washington.)


On Sunday, June 1, 1788, the dust lay deep in the streets of the little
town of Richmond. Multitudes of horses were tethered here and there or
stabled as best the Virginia Capital's meager accommodations permitted.
Cavalcades of mounted men could be seen from Shockoe Hill, wending their
way over the imperfect earthen roads from every direction to the center
of interest.[982] Some of these had come hundreds of miles and arrived
in the garb of the frontier, pistol and hanger at belt.[983] Patrick
Henry, prematurely old at fifty-two, came in a one-horse, uncovered gig;
Pendleton, aged, infirm, and a cripple, arrived in a phaeton.[984]

As we have seen, it was very hard for members of Virginia's Legislature
to get to the seat of the State Government even from counties not far
distant; and a rainy season, or even one week's downpour during the
latter part of May, would have kept large numbers of the members of the
Virginia Convention from reaching their destination in time and perhaps
have decided the impending struggle[985] before it began. The year's
great social and sporting event added to the throng and colored the dark
background of political anxiety and apprehension with a faint tinge of
gayety.[986]

Although seven months had elapsed since the Federal Convention had
finished its work, there was, nevertheless, practically no accurate
knowledge among the people of the various parts of the "New Plan" of
government. Even some members of the Virginia State Convention had never
seen a copy of the Constitution until they arrived in Richmond to
deliberate upon it and decide its fate.[987] Some of the most inquiring
men of this historic body had not read a serious or convincing argument
for it or against it.[988] "The greater part of the members of the
[Virginia] convention will go to the meeting without information on the
subject," wrote Nicholas to Madison immediately after the election of
delegates.[989]

One general idea, however, had percolated through the distances and
difficulties of communication to the uninformed minds of the people--the
idea that the new Constitution would form a strong, consolidated
National Government, superior to and dominant over the State
Governments; a National Sovereignty overawing State Sovereignties,
dangerous to if not entirely destructive of the latter; a general and
powerful authority beyond the people's reach, which would enforce
contracts, collect debts, impose taxes; above all, a bayonet-enforced
rule from a distant point, that would imperil and perhaps abolish
"liberty."[990]

So a decided majority of the people of Virginia were against the
proposed fundamental law;[991] for, as in other parts of the country,
few of Virginia's masses wanted anything stronger than the weak and
ineffective Government of the State and as little even of that as
possible. Some were "opposed to any system, was it even sent from
heaven, which tends to confirm the union of the States."[992] Madison's
father reported the Baptists to be "generally opposed to it"; and the
planters who went to Richmond to sell their tobacco had returned foes of
the "new plan" and had spread the uprising against it among others "who
are no better acquainted with the necessity of adopting it than they
themselves."[993] At first the friends of the Constitution deceived
themselves into thinking that the work of the Philadelphia Convention
met with approval in Virginia; but they soon found that "the tide next
took a sudden and strong turn in the opposite direction."[994] Henry
wrote to Lamb that "Four-fifths of our inhabitants are opposed to the
new scheme of government"; and he added that south of the James River "I
am confident nine-tenths are opposed to it."[995]

That keen and ever-watchful merchant, Minton Collins, thus reported to
the head of his commercial house in Philadelphia: "The New Federal
Constitution will meet with much opposition in this State [Virginia] for
many pretended patriots has taken a great deal of pains to poison the
minds of the people against it.... There are two Classes here who oppose
it, the one is those who have power & are unwilling to part with an atom
of it, & the others are the people who owe a great deal of money, and
are very unwilling to pay, as they are afraid this Constitution will
make them _Honest Men_ in spite of their teeth."[996]

And now the hostile forces are to meet in final and decisive conflict.
Now, at last, the new Constitution is to be really _debated_; and
debated openly before the people and the world. For the first time, too,
it is to be opposed in argument by men of the highest order in ability,
character, and standing--men who cannot be hurried, or bullied, or
shaken, or bought. The debates in the Virginia Convention of 1788 are
the only masterful discussions on _both_ sides of the controversy that
ever took place.

While the defense of the Constitution had been very able in Pennsylvania
and Massachusetts (and later in New York was to be most brilliant), the
attack upon it in the Virginia Convention was nowhere equaled or
approached in power, learning, and dignity. Extravagant as the assertion
appears, it nevertheless is true that the Virginia contest was the only
real _debate_ over the whole Constitution. It far surpassed, especially
in presenting the reasons against the Constitution, the discussion in
the Federal Convention itself, in weight of argument and attractiveness
of presentation, as well as in the ability and distinction of the
debaters.

The general Federal Convention that framed the Constitution at
Philadelphia was a secret body; and the greatest pains were taken that
no part of its proceedings should get to the public until the
Constitution itself was reported to Congress. The Journals were confided
to the care of Washington and were not made public until many years
after our present Government was established. The framers of the
Constitution ignored the purposes for which they were delegated; they
acted without any authority whatever; and the document, which the
warring factions finally evolved from their quarrels and dissensions,
was revolutionary.[997] This capital fact requires iteration, for it is
essential to an understanding of the desperate struggle to secure the
ratification of that then unpopular instrument.

"Not one legislature in the United States had the most distant idea when
they first appointed members for a [Federal] convention, entirely
commercial ... that they would without any warrant from their
constituents, presume on so bold and daring a stride," truthfully writes
the excitable Gerry of Massachusetts in his bombastic denunciation of
"the fraudulent usurpation at Philadelphia."[998] The more reliable
Melancton Smith of New York testifies that "previous to the meeting of
the Convention the subject of a new form of government had been little
thought of and scarcely written upon at all.... The idea of a government
similar to" the Constitution "never entered the minds of the
legislatures who appointed the Convention and of but very few of the
members who composed it, until they had assembled and heard it proposed
in that body."[999]

"Had the idea of a total change [from the Confederation] been started,"
asserts the trustworthy Richard Henry Lee of Virginia, "probably no
state would have appointed members to the Convention.... Probably not
one man in ten thousand in the United States ... had an idea that the
old ship [Confederation] was to be destroyed. Pennsylvania appointed
principally those men who are esteemed aristocratical.... Other
States ... chose men principally connected with commerce and the
judicial department." Even so, says Lee, "the non-attendance of eight or
nine men" made the Constitution possible. "We must recollect, how
disproportionately the democratic and aristocratic parts of the
community were represented" in this body.[1000]

This "child of fortune,"[1001] as Washington called the Constitution,
had been ratified with haste and little or no discussion by Delaware,
New Jersey, Connecticut, and Georgia. The principal men in the first
three Commonwealths felt that the Constitution gave those States large
commercial advantages and even greater political consequence;[1002] and
Georgia, with so small a population as to be almost negligible, felt the
need of some strong Government to defend her settlers against the
Indians. It is doubtful whether many of the people of these four States
had read the Constitution or had heard much about it, except that, in a
general way, they were to be better off under the new than under the old
arrangement. Their ratification carried no weight other than to make up
four of the nine States necessary to set the new system in motion.

In other States its friends had whipped up all possible speed. Not a
week had passed after the Federal Convention had laid the proposed
Constitution before Congress when a resolution was introduced in the
Legislature of Pennsylvania for the election, within five weeks,[1003]
of delegates to a State Convention to ratify the "New Plan." When its
opponents, failing in every other device to delay or defeat it, refused
to attend the sessions, thus breaking a quorum, a band of
Constitutionalists "broke into their lodgings, seized them, dragged them
though the streets to the State House and thrust them into the Assembly
room with clothes torn and faces white with rage." And there the
objecting members were forcibly kept until the vote was taken. Thus was
the quorum made and the majority of the Legislature enabled to "pass"
the ordinance for calling the Pennsylvania State Convention to ratify
the National Constitution.[1004] And this action was taken before the
Legislature had even received from Congress a copy of that document.

The enemies in Pennsylvania of the proposed National Government were
very bitter. They said that the Legislature had been under the yoke of
Philadelphia--a charge which, indeed, appears to be true. Loud were the
protests of the minority against the feverish haste. When the members of
the Pennsylvania Convention, thus called, had been chosen and had
finished their work, the Anti-Constitutionalists asserted that no fair
election had really taken place because it "was held at so early a
period and want of information was so great" that the people did not
know that such an election was to be held; and they proved this to their
own satisfaction by showing that, although seventy thousand
Pennsylvanians were entitled to vote, only thirteen thousand of them
really had voted and that the forty-six members of the Pennsylvania
Convention who ratified the Constitution had been chosen by only
sixty-eight hundred voters. Thus, they pointed out, when the State
Convention was over, that the Federal Constitution had been ratified in
Pennsylvania by men who represented less than one tenth of the voting
population of the State.[1005]

Indeed, a supporter of the Constitution admitted that only a small
fraction of the people did vote for members of the Pennsylvania State
Convention; but he excused this on the ground that Pennsylvanians seldom
voted in great numbers except in contested elections; and he pointed out
that in the election of the Convention which framed the State's
Constitution itself, only about six thousand had exercised their right
of suffrage and that only a little more than fifteen hundred votes had
been cast in the whole Commonwealth to elect Pennsylvania's first
Legislature.[1006]

The enemies of the proposed plan for a National Government took the
ground that it was being rushed through by the "aristocrats"; and the
"Independent Gazetteer" published "The humble address of the _low born_
of the United States of America, to their fellow slaves scattered
throughout the world," which sarcastically pledged that "we, the _low
born_, that is, all the people of the United States, except 600 or
thereabouts, _well born_," would "allow and admit the said 600 _well
born_ immediately to establish and confirm this most noble, most
excellent, and truly divine constitution."[1007]

James Wilson, they said, had been all but mobbed by the patriots during
the Revolution; he never had been for the people, but always "strongly
tainted with the spirit of _high aristocracy_."[1008] Yet such a man,
they declared, was the ablest and best person the Constitutionalists
could secure to defend "that political monster, the proposed
Constitution"; "a monster" which had emerged from "the thick veil of
secrecy."[1009]

When the Pennsylvania State Convention had assembled, the opponents of
the Constitution at once charged that the whole business was being
speeded by a "system of precipitancy."[1010] They rang the changes on
the secret gestation and birth of the Nation's proposed fundamental law,
which, said Mr. Whitehill, "originates in mystery and must terminate in
despotism," and, in the end, surely would annihilate the States.[1011]
Hardly a day passed that the minority did not protest against the
forcing tactics of the majority.[1012] While much ability was displayed
on both sides, yet the debate lacked dignity, courtesy, judgment, and
even information. So scholarly a man as Wilson said that "Virginia has
no bill of rights";[1013] and Chief Justice McKean, supported by Wilson,
actually declared that none but English-speaking peoples ever had known
trial by jury.[1014]

"Lack of veracity," "indecent," "trifling," "contempt for arguments and
person," were a few of the more moderate, polite, and soothing epithets
that filled Pennsylvania's Convention hall throughout this so-called
debate. More than once the members almost came to blows.[1015] The
galleries, filled with city people, were hot for the Constitution and
heartened its defenders with cheers. "This is not the voice of the
people of Pennsylvania," shouted Smilie, denouncing the partisan
spectators. The enemies of the Constitution would not be "intimidated,"
he dramatically exclaimed, "were the galleries filled with
bayonets."[1016] The sarcastic McKean observed in reply that Smilie
seemed "mighty angry, merely because somebody was pleased."[1017]

Persons not members of the Convention managed to get on the floor and
laughed at the arguments of those who were against the Constitution.
Findley was outraged at this "want of sense of decency and order."[1018]
Justice McKean treated the minority with contempt and their arguments
with derision. "_If the sky falls, we shall catch larks; if the rivers
run dry, we shall catch eels_," was all, said this conciliatory
advocate of the Constitution, that its enemies' arguments amounted to;
they made nothing more than a sound "like _the working of small
beer_."[1019]

The language, manners, and methods of the supporters of the Constitution
in the Pennsylvania Convention were resented outside the hall. "If
anything could induce me to oppose the New Constitution," wrote a
citizen signing himself "Federalist," "it would be the indecent,
supercilious carriage of its advocates towards its opponents."[1020]

While the Pennsylvania State Convention was sitting, the Philadelphia
papers were full of attacks and counter-attacks by the partisans of
either side, some of them moderate and reasonable, but most of them
irritating, inflammatory, and absurd. A well-written petition of
citizens was sent to the Convention begging it to adjourn until April or
May, so that the people might have time to inform themselves on the
subject: "The people of Pennsylvania have not yet had sufficient time
and opportunity afforded them for this purpose. The great bulk of the
people, from the want of leisure from other avocations; their remoteness
from information, their scattered situation, and the consequent
difficulty of conferring with each other" did not understand the
Constitution, declared this memorial.

"The unaccountable zeal and precipitation used to hurry the people into
premature decision" had excited and alarmed the masses, "and the
election of delegates was rushed into before the greater part of the
people ... knew what part to take in it." So ran the cleverly drawn
indictment of the methods of those who were striving for ratification in
Pennsylvania.[1021] In the State Convention, the foes of the
Constitution scathingly denounced to the very last the jamming-through
conduct of its friends; and just before the final vote, Smilie dared
them to adjourn that the sense of the people might be taken.[1022]

Even such of the people as could be reached by the newspapers were not
permitted to be enlightened by the Convention "debates"; for reports of
them were suppressed.[1023] Only the speeches of James Wilson and Chief
Justice McKean, both ardent advocates of the Constitution, were allowed
to be published.[1024]

But although outnumbered two to one, cuffed and buffeted without mercy
in debate, scoffed at and jeered at by the people of the Quaker City,
the minority was stiff-necked and defiant. Their heads were "bloody but
unbowed." Three days after the vote for ratification, forty-six "ayes"
to twenty-three "nays," had been taken, the minority issued an address
to their constituents.[1025] It relates the causes which led to the
Federal Convention, describes its members, sets forth its usurpation of
power, details the efforts to get popular support for the Constitution
even "whilst the gilded chains were forging in the secret conclave."

The address recounts the violence by which the State Convention was
called, "not many hours" after the "New Plan" had "issued forth from the
womb of suspicious secrecy"; and reaffirms the people's ignorance of the
Constitution, the trifling vote, the indecorous, hasty, "insulting"
debate. It gives the amendments asked for by the minority, and finally
presents most if not all the arguments which before had been or since
have been advanced against the Constitution, and especially the National
principle which pervades it.

The powers given Congress would produce "one consolidated government,
which, from the nature of things, will be an _iron handed despotism_";
the State Governments would be annihilated; the general welfare clause
would justify anything which "_the will and pleasure_ of congress"
dictated; that National body, "with complete and unlimited power over
the _purse_ and the _sword_," could[1026] by taxation "command the whole
or any part of the property of the people"--imposts, land taxes, poll
taxes, excises, duties--every kind of tax on every possible species of
property and written instrument could be laid by the "monster" of
National power. By the Judiciary provided in the Constitution "the rich
and wealthy suitors would eagerly lay hold of the infinite mazes,
perplexities and delays ... and the poor man being plunged in the
bottomless pit of legal discussion" could not get justice.[1027]

Two coördinate "sovereignties," State and National, "would be contrary
to the nature of things"; the Constitution without a bill of rights
"would of itself necessarily produce a despotism"; a standing army might
be used to collect the most burdensome taxes and with it "an ambitious
man ... may step up into the throne and seize upon absolute
power"[1028]--such are the broad outlines of the document with which the
undismayed enemies of the Constitution began their campaign against it
among the people of Pennsylvania after the Convention had ratified it.

The wrath of the Pennsylvania foes of the Constitution fed and grew upon
its own extravagance. The friends of the "New Plan" tried to hold a
meeting in Carlisle to rejoice over its ratification; but the crowd
broke up their meeting, wrecked their cannon, and burned the
Constitution in the very bonfire which the Constitutionalists had
prepared to celebrate its victory. Blows were struck and violence
done.[1029] For almost a year, an Anti-Constitutionalist paper in
Philadelphia kept up the bombardment of the Constitution and its
advocates, its gunner being a writer signing himself "Centinel."[1030]
His ammunition was a mixture of argument, statement, charge, and abuse,
wrapped up in cartridge paper of blistering rhetoric. The Constitution
was, wrote "Centinel," a "spurious brat"; "the evil genius of darkness
presided at its birth" and "it came forth under the veil of
mystery."[1031]

Should the small fraction of the people who had voted for the members of
the Pennsylvania State Convention bind the overwhelming majority who had
not voted, asked "Centinel." No, indeed! The people, wrote he with pen
of gall, had nothing but contempt for the "solemn mummery" that had been
acted in their name.[1032] As to the citizens of Philadelphia, everybody
understood, asserted "Centinel," that the "spirit of independency" was
dead within _their_ breasts; Philadelphia merchants, as was well known,
were mere vassals to a commercial "colossus" (Robert Morris) who held
the city in "thraldom."[1033]

"Mankind in the darkest ages, have never been so insulted," cried
"Centinel," as the men of Pennsylvania had been by this "flagrant ...
audacious ... conspiracy [the Constitution] against the liberties of a
free people."[1034] The whole thing, he declared, was a dastardly plot.
The conspirators had disarmed the militia, kept out of the mails such
newspapers as had dared to voice the "people's rights";[1035] and "all
intercourse between the patriots of America is as far as possible cut
off; whilst on the other hand the conspirators have the most exact
information, a common concert is everywhere evident; they move in
unison."[1036]

The Constitutionalists were not content with their vile work in
thrusting upon Pennsylvania "the empire of delusion," charged
"Centinel,"[1037] but their agents were off for Virginia to do the like
there.[1038] The whole world knew, said he, that the Constitutionalists
had rushed the Constitution through in Pennsylvania;[1039] and that the
"immaculate convention [that framed the Constitution] ... contained a
number of the principal public defaulters,"[1040] chief of whom was
Robert Morris, who, though a bankrupt in the beginning of the
Revolution, had, by "peculation and embezzlement of the public
property," accumulated "the immense wealth he has dazzled the world with
since."[1041]

If only the address of Pennsylvania's heroic minority, "Centinel"
lamented, had reached Boston in time, it would "have enabled patriotism
to triumph" there; but, of course, the "_high born_" Constitutionalist
managers of post-offices kept it back.[1042] Was not the scandal so
foul, asked "Centinel," that, on the petition of Philadelphia printers,
Pennsylvania's Legislature appealed to Congress against the suppression
of the mails?[1043] Of course Philadelphia was for "this system of
tyranny"; but three fourths of the people in the eastern counties and
nineteen twentieths of those in the middle, northern, and western
counties were against it.[1044]

The grape and canister which its enemies poured upon the Constitution
and its friends in Pennsylvania brought an answering fire. The attacks,
said the Constitutionalists, had been written by "hireling writers" and
"sowers of sedition"; their slanders showed "what falsehoods
disappointed ambition is capable of using to impose upon the public."
According to the Constitutionalists, their opponents were "incendiaries"
with "infamous designs."[1045] "If every lie was to be punished by
clipping, as in the case of other forgeries, not an ear would be left
amongst the whole party," wrote a Constitutionalist of the conduct of
the opposition.[1046]

But the Constitutionalists were no match for their enemies in the
language of abuse, recklessness in making charges, or plausibility in
presenting their case. Mostly they vented their wrath in private
correspondence, which availed nothing. Yet the letters of business men
were effective in consolidating the commercial interests. Also they
illuminate the situation.

"That restless firebrand, the Printer of your city [Oswald, editor of
the "Independent Gazetteer"], is running about as if driven by the
Devil," wrote a New York merchant to a Philadelphia business
correspondent, "seemingly determined to do all the mischief he can;
indeed, in my opinion he is an actual incendiary & ought to be the
object of legal restraint. He is in his own person a strong argument of
the necessity of speedily adopting the new System & putting it into
immediate motion."[1047]

And "firebrands," indeed, the Anti-Constitutionalists prove themselves
in every possible way.

Madison was alarmed. He writes to Jefferson that the "minority ... of
Pennsylvania has been extremely intemperate and continues to use very
bold and menacing language."[1048] Little did Madison then foresee that
the very men and forces he now was fighting were laying the foundation
for a political party which was to make him President. Far from his
thought, at this time, was the possibility of that antipodal change
which public sentiment and Jefferson's influence wrought in him two
years later. When the fight over the Constitution was being waged, there
was no more extreme Nationalist in the whole country than James Madison.

So boiled the stormy Pennsylvania waters through which the Constitution
was hastened to port and such was the tempest that strained its moorings
after it was anchored in the harbor of ratification.

In Massachusetts, "all the men of abilities, of property and of
influence,"[1049] were quite as strong for the Constitution as the same
class in Pennsylvania; but, impressed by the revolt against the tactics
of hurry and force which the latter had employed, the Constitutionalists
of the Bay State took an opposite course. Craft, not arrogance, was
their policy. They were "wise as serpents," but appeared to be "as
harmless as doves." Unlike the methods of the Pennsylvania
Constitutionalists, they were moderate, patient, conciliatory, and
skillful. They put up Hancock for President of the Convention, in order,
as they said, "that we might have advantage of [his] ... name--whether
capable of attending or not."[1050]

The Massachusetts adversaries of the Constitution were without a leader.
Among them "there was not a single character capable of uniting their
wills or directing their measures."[1051] Their inferiority greatly
impressed Madison, who wrote to Pendleton that "there was scarce a man
of respectability" among them.[1052] They were not able even to state
their own case.

"The friends of the Constitution, who in addition to their own
weight ... represent a very large proportion of the good sense and
property of this State, have the task not only of answering, but also of
stating and bringing forward the objections of their opponents," wrote
King to Madison.[1053] The opponents admitted this themselves. Of
course, said they, lawyers, judges, clergymen, merchants, and educated
men, all of whom were in favor of the Constitution, could make black
look white; but "if we had men of this description on our side" we could
run these foxes to earth.[1054] Mr. Randall hoped "that these great men
of eloquence and learning will not try to _make_ arguments to make this
Constitution go down, right or wrong.... It takes the best men in this
state to gloss this Constitution.... Suppose ... these great men would
speak half as much against it, we might complete our business and go
home in forty-eight hours."[1055]

The election of members to the Massachusetts Convention had shown
widespread opposition to the proposed establishment of a National
Government. Although the Constitutionalists planned well and worked
hard, some towns did not want to send delegates at all; forty-six towns
finally refused to do so and were unrepresented in the Convention.[1056]
"Biddeford has backsliden & fallen from a state of Grace to a state of
nature, met yesterday & a dumb Devil seized a Majority & they voted not
to send, & when called on for a Reason they were dumb, _mirabile
dictu_!"[1057] King Lovejoy was chosen for Vassalborough; but when the
people learned that he would support the Constitution they "called
another Meeting, turned him out, & chose another in his room who was
desidedly against it."[1058]

The division among the people in one county was: "The most reputable
characters ... on ... _the right_ side [for the Constitution] ... but
the middling & common sort ... on the opposite";[1059] and in another
county "the Majority of the Common people" were opposed,[1060] which
seems to have been generally true throughout the State. Of the sentiment
in Worcester, a certain E. Bangs wrote: "I could give you but a very
disagreeable account: The most of them entertain such a dread of
arbitrary power, that they are afraid even of limited authority.... Of
upwards of 50 members from this county not more than 7 or 8 delegates
are" for the Constitution, "& yet some of them are good men--Not all
[Shays's] insurgents I assure you."[1061]

Judge Sewall reported from York that the delegates there had been
chosen "to Oppose the Business.... Sanford had one meeting and Voted not
to Send any--But M^r. S. come down full charged with Gass and Stirred up
a 2^{nd} Meeting and procured himself Elected, and I presume will go up
charged like a Baloon."[1062] Nathaniel Barrell of York, a successful
candidate for the Massachusetts Convention, "behaved so indecently
before the Choice, as extorted a severe Reprimand from Judge Sewall, and
when chosen modestly told his Constituents, he would sooner loose his
Arm than put his Assent to the new proposed Constitution, it is to be
feared many of his Brethern are of his mind."[1063]

Barrell explained to Thatcher: "I see it [the Constitution] pregnant
with the fate of our libertys.... I see it entails wretchedness on my
posterity--Slavery on my children; ... twill not be so much for our
advantage to have our taxes imposed & levied at the pleasure of Congress
as [by] the method now pursued ... a Continental Collector at the head
of a standing army will not be so likely to do us justice in collecting
the taxes.... I think such a Government impracticable among men with
such high notions of liberty as we americans."[1064]

The "Address of the Minority" of Pennsylvania's Convention had reached a
few men in Massachusetts, notwithstanding the alleged refusal of the
post-office to transmit it; and it did some execution. To Thomas B. Wait
it "was like the Thunder of Sinai--its lightenings were irresistible"
to him. He deplored the "darkness, duplicity and studied ambiguity ...
running thro' the whole Constitution," which, to his mind, made it
certain that "as it now stands but very few individuals do or ever will
understand it.... The vast Continent of America cannot long be subjected
to a Democracy if consolidated into one Government--you might as well
attempt to rule Hell by Prayer."[1065]

Christopher Gore condensed into one sentence the motives of those who
favored the Constitution as the desire for "an honorable & efficient
Govt. equal to the support of our national dignity--& capable of
protecting the property of our citizens."[1066]

The spirit of Shays's Rebellion inspired the opponents of the
Constitution in Massachusetts. "Many of the [Shays's] insurgents are in
the Convention," Lincoln informed Washington; "even some of Shays's
officers. A great proportion of these men are high in the opposition. We
could hardly expect any thing else; nor could we ... justly suppose that
those men, who were so lately intoxicated with large draughts of
liberty, and who were thirsting for more would ... submit to a
Constitution which would further take up the reins of Government, which,
in their opinion, were too straight before."[1067]

Out of three hundred and fifty-five members of the Massachusetts
Convention, one hundred and sixty-eight held out against the
Constitution to the very last, uninfluenced by the careful, able, and
convincing arguments of its friends, unmoved by their persuasion,
unbought by their promises and deals.[1068] They believed "that some
injury is plotted against them--that the system is the production of the
rich and ambitious," and that the Constitution would result in "the
establishment of two orders in Society, one comprehending the opulent
and great, the other the poor and illiterate."[1069] At no time until
they won over Hancock, who presided over the Massachusetts Convention,
were the Constitutionalists sure that a majority was not against the new
plan.

The struggle of these rude and unlearned Massachusetts men against the
cultured, disciplined, powerful, and ably led friends of the
Constitution in that State was pathetic. "Who, sir, is to pay the debts
of the yeomanry and others?" exclaimed William Widgery. "Sir, when oil
will quench fire, I will believe all this [the high-colored prophesies
of the Constitutionalists] and not till then.... I cannot see why we
need, for the sake of a little meat, swallow a great bone, which, if it
should happen to stick in our throats, can never be got out."[1070]

Amos Singletary "wished they [the Constitutionalists] would not play
round the subject with their fine stories like a fox round a trap, but
come to it."[1071] "These lawyers," said he, "and men of learning and
moneyed men, that talk so finely, and gloss over matters so smoothly,
to make us poor illiterate people swallow down the pill, expect to get
into Congress themselves; they expect to be the managers of this
Constitution, and get all the power and all the money, into their own
hands, and then they will swallow up all us little folks like the great
_Leviathan_; ... yes, just as the whale swallowed up _Jonah_."[1072]
Replying to the Constitutionalist argument that the people's
representatives in Congress would be true to their constituents, Abraham
White said that he "would not trust a 'flock of Moseses.'"[1073]

The opposition complained that the people knew little or nothing about
the Constitution--and this, indeed, was quite true. "It is strange,"
said General Thompson, "that a system which its planners say is so
plain, _that he that runs may read it_, should want so much
explanation."[1074] "Necessity compelled them to hurry,"[1075] declared
Widgery of the friends of the Constitution. "Don't let us go too
fast.... Why all this racket?" asked the redoubtable Thompson.[1076] Dr.
John Taylor was sure that Senators "once chosen ... are chosen
forever."[1077]

Time and again the idea cropped out of a National Government as a kind
of foreign rule. "I beg the indulgence of this honorable body," implored
Samuel Nason, "to permit me to make a short apostrophe to Liberty. O
Liberty! thou greatest good! thou fairest property! with thee I wish to
live--with thee I wish to die! Pardon me if I drop a tear on the peril
to which she is exposed: I cannot, sir, see this brightest of jewels
tarnished--a jewel worth ten thousand worlds; and shall we part with it
so soon? O no."[1078] And Mr. Nason was sure that the people would part
with this brightest of jewels if the Constitution was adopted. As to a
standing army, let the Constitutionalists recall Boston on March 5,
1770. "Had I a voice like Jove," cried Nason, "I would proclaim it
throughout the world; and had I an arm like Jove, I would hurl from the
globe those villains that would dare attempt to establish in our country
a standing army."[1079]

These "poor, ignorant men," as they avowed themselves to be, were rich
in apostrophes. The reporter thus records one of General Thompson's
efforts: "Here the general broke out in the following pathetic
apostrophe: 'O my country, never give up your annual elections! Young
men, never give up your jewel.'"[1080] John Holmes showed that the
Constitution gave Congress power to "institute judicatories" like "that
diabolical institution, the _Inquisition_." "_Racks_," cried he, "and
_gibbets_, may be amongst the most mild instruments of their
[Congress's] discipline."[1081] Because there was no religious test,
Major Thomas Lusk "shuddered at the idea that Roman Catholics, Papists,
and Pagans might be introduced into office, and that Popery and the
Inquisition may be established in America";[1082] and Singletary pointed
out that under the Constitution a "Papist, or an Infidel, was as
eligible as ... a Christian."[1083]

Thus the proceedings dragged along. The overwhelming arguments of the
advocates of the Constitution were unanswered and, apparently, not even
understood by its stubborn foes. One Constitutionalist, indeed, did
speak their language, a farmer named Jonathan Smith, whom the
Constitutionalist managers put forward for that purpose. "I am a plain
man," said Mr. Smith, "and get my living by the plough. I am not used to
speak in public, but I beg leave to say a few words to my brother
plough-joggers in this house"; and Mr. Smith proceeded to make one of
the most effective speeches of the Convention.[1084] But all to no
purpose. Indeed, the pleadings and arguments for the Constitution seemed
only to harden the feeling of those opposed to it. They were obsessed by
an immovable belief that a National Government would destroy their
liberties; "and," testifies King, "a distrust of men of property or
education has a more powerful effect upon the minds of our opponents
than any specific objections against the Constitution."[1085]

Finally, in their desperation, the Constitutionalist managers won
Hancock,[1086] whose courting of the insurgents in Shays's Rebellion had
elected him Governor. He had more influence with the opposition than
any other man in New England. For the same reason, Governor Bowdoin's
friends, who included most of the men of weight and substance, had been
against Hancock. By promising the latter their support and by telling
him that he would be made President if Washington was not,[1087] the
Constitutionalist leaders induced Hancock to offer certain amendments
which the Massachusetts Convention should recommend to Congress along
with its ratification of the Constitution. Hancock offered these
proposals as his own, although they were drawn by the learned and
scholarly Parsons.[1088] Samuel Adams, hitherto silent, joined in this
plan.

Thus the trick was turned and the Massachusetts Convention ratified the
Constitution a few days later by a slender majority of nineteen out of a
vote of three hundred and fifty-five.[1089] But not without bitter
protest. General Thompson remarked that "he could not say amen to them
[the amendments], but they might be voted for by some men--he did not
say Judases."[1090] The deal by which the Constitutionalists won Hancock
was suspected, it appears, for Dr. Charles Jarvis denied that "these
amendments have been artfully introduced to lead to a decision which
would not otherwise be had."[1091] Madison in New York, watching the
struggle with nervous solicitude, thought that the amendments influenced
very few members of the Massachusetts opposition because of "their
objections being levelled against the very essence of the proposed
Government."[1092] Certainly, those who changed their votes for
ratification had hard work to explain their conversion.

Nathaniel Barrell, who had pledged his constituents that he would part
with his arm rather than vote for the "Slavery of my children," had
abandoned his vow of amputation and decided to risk the future bondage
of his offspring by voting for the Constitution. In trying to justify
his softened heroism, he said that he was "awed in the presence of this
august assembly"; he knew "how little he must appear in the eyes of
those giants of rhetoric, who have exhibited such a pompous display of
declamation"; but although he did not have the "eloquence of Cicero, or
the blaze of Demosthenian oratory," yet he would try to explain. He
summarized his objections, ending with his wish that "this Constitution
had not been, in some parts of the continent, hurried on, like the
driving of Jehu, very furiously." So he hoped the Convention would
adjourn, but if it would not--well, in that case, Mr. Barrell would
brave the wrath of his constituents and vote for ratification with
amendments offered by Hancock.[1093]

Just as the bargain with Hancock secured the necessary votes for the
Constitution in the Massachusetts Convention, so did the personal
behavior of the Constitutionalists forestall any outbreak of protest
after ratification. "I am at Last overcome," wrote Widgery, "by a
majority of 19, including the president [Hancock] whose very Name is an
Honour to the State, for by his coming in and offering Som Amendments
which furnished many with Excuses to their Constituants, it was adopted
to the great Joy of all Boston."[1094] The triumphant Constitutionalists
kept up their mellowing tactics of conciliation after their victory and
with good results, as appears by Mr. Widgery's account.

The "great bone" which had been thrust into his throat had not stuck
there as he had feared it would. The Constitutionalists furnished
materials to wash it down. "After Taking a parting Glass at the Expense
of the Trades men in Boston we Disolved";[1095] but not before the
mollified Widgery announced that the Constitution "had been carried by a
majority of wise and understanding men.... After expressing his thanks
for the civility which the inhabitants of this town [Boston] have shown
to the Convention, ... he concluded by saying that he should support
the ... Constitution" with all his might.[1096]

"One thing I mus menchen," relates Widgery, "the Gallerys was very much
Crowded, yet on the Desition of so emportant a Question as the present
you might have heard a Copper fall on the Gallery floor, their was Sush
a profound Silance; on thirs Day we got throw all our Business and on
Fry Day, there was a federal Ship Riged and fix^d on a Slead, hald by 13
Horses, and all Orders of Men Turn^d out and formed a procession in the
following ordor Viz first the Farmers with the plow and Harrow Sowing
grain, and Harrowing it in as they went Som in a Cart Brakeing and
Swingeing Flax ... Tradesmen of all sorts, ... the Bakers [with] their
Bread peal ... the Federal Ship ful Riged ... the Merchants ... a nother
Slead, Halled by 13 Horses on which was a Ship yard, and a Number of
smaul Ships &c. on that. in this order thay march^d to the House of Each
of their Delegates in the Town of Boston, and returned to Fanuels Aall
where the Merchants gave them 3 or 4 Hogsheads of Punch and as much wine
cake & cheese as they could make way with ... one thing more
Notwithstanding my opposition to the Constitution, and the anxiety of
Boston for its adoption I most Tel you I was never Treated with So much
politeness in my Life as I was afterwards by the Treadesmen of Boston
Merchants & every other Gentleman."[1097]

Thus did the Massachusetts Constitutionalists take very human and
effective measures to prevent such revolt against the Constitution,
after its ratification, as the haughty and harsh conduct of their
Pennsylvania brothers had stirred up in the City and State of Brotherly
Love. "The minority are in good temper," King advises Madison; "they
have the magnanimity to declare that they will devote their lives and
property to support the Government."[1098] While there was a little
Anti-Constitutionalist activity among the people after the Convention
adjourned, it was not virulent. Gerry, indeed, gave one despairing
shriek over departing "liberty" which he was sure the Constitution would
drive from our shores; but that lament was intended for the ears of New
York. It is, however, notable as showing the state of mind of such
Anti-Constitutionalists as the Constitution's managers had not taken
pains to mollify.

Gerry feared the "Gulph of despotism.... On these shores freedom has
planted her standard, diped in the purple tide that flowed from the
veins of her martyred heroes" which was now in danger from "the
deep-laid plots, the secret intrigues, ... the bold effrontery" of those
ambitious to be aristocrats, some of whom were "speculating for fortune,
by sporting with public money." Only "a few, a very few
[Constitutionalists] ... were ... defending their country" during the
Revolution, said Gerry. "Genius, Virtue, and Patriotism seems to nod
over the vices of the times ... while a supple multitude are paying a
blind and idolatrous homage to ... those ... who are endeavouring ... to
betray the people ... into an acceptance of a most complicated system of
government; marked on the one side with the _dark_, _secret_ and
_profound intrigues_ of the statesman, long practised in the purlieus of
despotism; and on the other, with the ideal projects of _young
ambition_, with its wings just expanded to soar to a summit, which
imagination has painted in such gawdy colours as to intoxicate the
_inexperienced votary_ and send _him_ rambling from State to State, to
collect materials to construct the ladder of preferment."[1099]

Thus protested Gerry; but if the people, in spite of his warnings,
_would_ "give their voices for a voluntary dereliction of their
privileges"--then, concluded Gerry, "while the statesman is plodding for
power, and the courtier practicing the arts of dissimulation without
check--while the rapacious are growing rich by oppression, and fortune
throwing her gifts into the lap of fools, let the sublimer characters,
the philosophic lovers of freedom who have wept over her exit, retire to
the calm shades of contemplation, there they may look down with pity on
the inconsistency of human nature, the revolutions of states, the rise
of kingdoms, and the fall of empires."[1100]

Such was the resistance offered to the Constitution in Massachusetts,
such the debate against it, the management that finally secured its
approval with recommendations by that Commonwealth,[1101] and the after
effects of the Constitutionalists' tactics.

In New Hampshire a majority of the Convention was against the
Constitution. "Almost every man of property and abilities ... [was] for
it," wrote Langdon to Washington; but "a report was circulated ... that
the liberties of the people were in danger, and the great men ... were
forming a plan for themselves; together with a thousand other
absurdities, which frightened the people almost out of what little
senses they had."[1102]

Very few of the citizens of New Hampshire knew anything about the
Constitution. "I was surprised to find ... that so little information
respecting the Constitution had been diffused among the people," wrote
Tobias Lear. "The valuable numbers of _Publius_ are not known.... The
debates of the Pennsylvania and Massachusetts Conventions have been read
by but few persons; and many other pieces, which contain useful
information have never been heard of."[1103]

When the New Hampshire Convention assembled, "a great part of whom had
positive instructions to vote against it," the Constitutionalists, after
much argument and persuasion, secured an adjournment on February 22
until June.[1104] Learning this in New York, nine days later, Madison
wrote Pendleton that the adjournment had been "found necessary to
prevent a rejection."[1105] But, "notwithstanding our late
Disappointments and Mortification," the New Hampshire Constitutionalists
felt that they would win in the end and "make the people happy in spight
of their teeth."[1106]

When, therefore, Virginia's great Convention met on June 2, 1788, the
Nation's proposed fundamental law had not received deliberate
consideration in any quarter; nor had it encountered weighty debate from
those opposed to it. New York's Convention was not to assemble until two
weeks later and that State was known to be hostile. The well-arranged
plan was working to combine the strength of the leading enemies of the
Constitution in the various States so that a new Federal Convention
should be called.[1107]

"Had the influence of character been removed, the intrinsic merits of
the instrument [Constitution] would not have secured its adoption.
Indeed, it is scarcely to be doubted, that in some of the adopting
States, a majority of the people were in the opposition," writes
Marshall many years afterwards in a careful review of the thorny path
the Constitution had had to travel.[1108] Its foes, says Marshall, were
"firmly persuaded that the cradle of the constitution would be the grave
of republican liberty."[1109]

In Virginia's Convention, the array of ability, distinction, and
character on both sides was notable, brilliant, and impressive. The
strongest debaters in the land were there, the most powerful orators,
and some of the most scholarly statesmen. Seldom, in any land or age,
has so gifted and accomplished a group of men contended in argument and
discussion at one time and place. And yet reasoning and eloquence were
not the only or even the principal weapons used by these giant
adversaries. Skill in political management, craft in parliamentary
tactics, intimate talks with the members, the downright "playing of
politics," were employed by both sides. "Of all arguments that may be
used at the convention," wrote Washington to Madison, more than four
months before the Convention, "the most prevailing one ... will be that
nine states at least will have acceded to it."[1110]


FOOTNOTES:

[982] Grigsby, i, 25.

[983] Travelers from the District of Kentucky or from the back
settlements of Virginia always journeyed fully armed, in readiness to
defend themselves from attack by Indians or others in their journey
through the wilderness.

[984] Grigsby, i, 27-28.

[985] _Ib._, 25.

[986] The Jockey Club was holding its annual races at Richmond when the
Constitutional Convention of 1788 convened. (Christian, 31.)

[987] Grigsby, i. 31.

[988] Humphrey Marshall, from the District of Kentucky, saw for the
first time one number of the _Federalist_, only after he had reached the
more thickly peopled districts of Virginia while on his way to the
Convention. (_ib._, footnote to 31.)

[989] George Nicholas to Madison, April 5, 1788; _Writings_: Hunt, v,
footnote to p. 115.

[990] "The most common and ostensible objection was that it [the
Constitution] would endanger state rights and personal liberty--that it
was too strong." (Humphrey Marshall, i, 285.)

[991] Tyler, i, 142. Grigsby estimates that three fourths of the people
of Virginia were opposed to the Constitution. (Grigsby, i, footnote to
160.)

[992] Lee to Madison, Dec. 1787; _Writings_: Hunt, v, footnote to p. 88.

[993] Madison's father to Madison, Jan. 30, 1788; _Writings_: Hunt, v,
footnote to p. 105.

[994] Madison to Jefferson, Feb. 19, 1788; _ib._, 103.

[995] Henry to Lamb, June 9, 1788; Henry, ii, 342.

[996] Minton Collins to Stephen Collins, March 16, 1788; Collins MSS.,
Lib. Cong.

[997] Even Hamilton admitted this. "The framers of it [the Constitution]
will have to encounter the disrepute of having brought about a
revolution in government, without substituting anything that was worthy
of the effort; they pulled down one Utopia, it will be said, to build up
another." (Hamilton to Washington, Sept., 1788; Hamilton's _Works_:
Lodge, ix, 444; and also in Jefferson, _Writings_: Ford, xi, footnote to
330.) Martin Van Buren describes the action of the Federal Convention
that framed the Constitution, in "having ... set aside the instructions
of Congress by making a new Constitution ... an heroic but lawless act."
(Van Buren, 49-50.)

Professor Burgess does not overstate the case when he declares: "Had
Julius or Napoleon committed these acts [of the Federal Convention in
framing and submitting the Constitution], they would have been
pronounced _coups d'état_." (Burgess, i, 105.)

Also see Beard: _Econ. I. C._, 217-18.

[998] Ford: _P. on C._, 14.

[999] _Ib._, 100-01.

[1000] Ford: _P. on C._, 284-85. And see Jameson, 40-49.

[1001] Washington to Lafayette, Sept. 18, 1788; _Writings_: Sparks, ix,
265.

[1002] Connecticut, New Jersey, and Delaware had practically no ports
and, under the Confederation, were at the mercy of Massachusetts, New
York, and Pennsylvania in all matters of trade. The Constitution, of
course, remedied this serious defect. Also, these smaller States had
forced the compromise by which they, with their comparatively small
populations, were to have an equal voice in the Senate with New York,
Pennsylvania, and Virginia, with their comparatively great populations.
And therefore they would have practically equal weight in the law--and
treaty-making power of the Government. This was the most formidable of
the many rocks on which the Federal Convention all but broke up.

[1003] One proposition was to call the State Convention "within _ten_
days." (See "Address of the Minority of the Pennsylvania Convention," in
McMaster and Stone, 458.)

[1004] _Ib._, 3-4; and see _ib._, 75. An excuse for these mob methods
was that the Legislature previously had resolved to adjourn _sine die_
on that very day. This would put off action until the next session. The
Anti-Constitutionalists urged--with entire truthfulness--that even this
delay would give the people too little time to inform themselves upon
the "New Plan" of government, as it was called, which the Convention was
to pass upon in the people's name. "Not one in twenty know anything
about it." (Mr. Whitehall in debate in the Legislature; _ib._, 32.)

[1005] McMaster and Stone, 459-60. This charge was wholly accurate.
Both sides exerted themselves to carry the "election." The
Anti-Constitutionalists declared that they stood for "the principles of
the Revolution"; yet, asserts Graydon, who was at Reading at the time,
they sought the support of the Tories; the country lawyers were opposed
to the "New Plan" and agreed not "to practice or accept any office
under the Constitution"; but the Constitutionalists promised
"prothonotaryships, attorney generalships, chief justiceships, and what
not," and the hostile attorneys "were tempted and did eat." Describing
the spirit of the times, Graydon testifies that "pelf was a better goal
than liberty and at no period in my recollection was the worship of
Mammon more widely spread, more sordid and disgusting."

Everybody who wanted it had a military title, that of major being "the
very lowest that a dasher of any figure would accept." To "clap on a
uniform and a pair of epaulettes, and scamper about with some militia
general for a day or two" was enough to acquire the coveted rank. Thus,
those who had never been in the army, but "had played a safe and
calculating game" at home and "attended to their interests," were not
only "the men of mark and consideration," but majors, colonels, and
generals as well. (Graydon, 331-33.)

Noting, at a later time, this passion for military titles Weld says: "In
every part of America a European is surprised at finding so many men
with military titles ... but no where ... is there such a superfluity of
these military personages as in the little town of Staunton; there is
hardly a decent person in it ... but what is a colonel, a major, or a
captain." (Weld, i, 236-37.)

Such were the conditions in the larger towns when the members of the
Pennsylvania Convention were chosen. The small vote cast seems to
justify the charge that the country districts and inaccessible parts of
the State did not even know of the election.

[1006] McMaster and Stone, 503-04.

[1007] McMaster and Stone, 173-74.

[1008] _Independent Gazetteer_: _ib._, 183-84.

[1009] _Ib._, 184-85.

[1010] Pennsylvania Debates, in McMaster and Stone, 231. Elliott prints
only a small part of these debates.

[1011] _Ib._, 283-85.

[1012] _Ib._, 219.

[1013] McMaster and Stone, 253.

[1014] Findley covered them with confusion in this statement by citing
authority. Wilson irritably quoted in retort the words of Maynard to a
student: "Young Man! I have forgotten more law than ever you learned."
(_Ib._, 352-64.)

[1015] _Ib._, 361-63.

[1016] _Ib._, 365.

[1017] _Ib._

[1018] _Ib._, 419.

[1019] McMaster and Stone, 365.

[1020] _Ib._, 453. The conduct of the Pennsylvania supporters of the
Constitution aroused indignation in other States, and caused some who
had favored the new plan of government to change their views. "On
reception of the Report of the [Federal] Convention, I perused, and
admir'd it;--Or rather, like many who still _think_ they admire it, I
loved Geo. Washington--I venerated Benj. Franklin--and therefore
concluded that I must love and venerate all the works of their
hands;--.... The honest and uninformed _freemen_ of America entertain
the same opinion of those two gentlemen as do European _slaves_ of their
Princes,--'_that they can do no wrong_.'"

But, continues Wait, "on the unprecedented Conduct of the Pennsylvania
Legislature [and Convention] I found myself Disposed to lend an ear to
the arguments of the opposition--not with an expectation of being
convinced that the new Constitution was defective; but because I thought
the minority had been ill used; and I felt a little curious to hear the
particulars," with the result that "I am dissatisfied with the proposed
Constitution." (Wait to Thatcher, Jan. 8, 1788; _Hist. Mag._ (2d
Series), vi, 262; and see _infra_.)

Others did not, even then, entertain Mr. Wait's reverence for
Washington, when it came to accepting the Constitution because of his
support. When Hamilton asked General Lamb how he could oppose the
Constitution when it was certain that his "good friend Genl. Washington
would ... be the first President under it," Lamb "reply'd that ... after
him Genl. Slushington might be the next or second president." (Ledlie to
Lamb; MS., N.Y. Hist. Soc.)

[1021] McMaster and Stone, 432-35.

[1022] _Ib._, 424.

[1023] _Ib._, 14-15.

[1024] _Ib._

[1025] "Address of the Minority"; McMaster and Stone, 454-83.

[1026] "Address of the Minority"; McMaster and Stone, 466.

[1027] _Ib._, 469-70.

[1028] _Ib._, 480.

[1029] See various contemporary accounts of this riot reprinted in
McMaster and Stone, 486-94.

[1030] The authorship of the "Letters of Centinel" remains unsettled. It
seems probable that they were the work of Eleazer Oswald, printer of the
_Independent Gazetteer_, and one George Bryan, both of Philadelphia.
(See _ib._, 6-7, and footnote.)

[1031] "Letters of Centinel," no. 4, _ib._, 606.

[1032] _Ib._, 620.

[1033] _Ib._, 625.

[1034] McMaster and Stone, 624.

[1035] _Ib._, 630, 637, 639, 642, 653, 655.

[1036] _Ib._, 629.

[1037] _Ib._, 641.

[1038] _Ib._, 631; and see _infra_, chap. XI.

[1039] _Ib._, 639.

[1040] _Ib._, 658.

[1041] _Ib._, 661.

[1042] _Ib._, 667.

[1043] McMaster and Stone, 667.

[1044] _Ib._, 668.

[1045] "A Real Patriot," in _Independent Gazetteer_, reprinted in
McMaster and Stone, 524.

[1046] "Gomes," in _ib._, 527.

[1047] H. Chapman to Stephen Collins, June 20, 1788; MS., Lib. Cong.
Oswald, like Thomas Paine, was an Englishman.

[1048] Madison to Jefferson, Feb. 19, 1788; _Writings_: Hunt, v, 102.

[1049] Madison to Jefferson, Feb. 19, 1788; _Writings_: Hunt, v, 101.

[1050] Gore to Thatcher, June 9, 1788; _Hist. Mag._ (2d Series), vi,
263. This was a very shrewd move; for Hancock had not yet been won over
to the Constitution; he was popular with the protesting delegates, and
perhaps could not have been defeated had they made him their candidate
for presiding officer; the preferment flattered Hancock's abnormal
vanity and insured the Constitutionalists against his active opposition;
and, most of all, this mark of their favor prepared the way for the
decisive use the Constitutionalist leaders finally were able to make of
him. Madison describes Hancock as being "weak, ambitious, a courtier of
popularity, given to low intrigue." (Madison to Jefferson, Oct. 17,
1788; _Writings_: Hunt, v, 270.)

[1051] Madison to Jefferson, Feb. 19, 1788; _Writings_: Hunt, v, 101.

[1052] Madison to Pendleton, Feb. 21, 1788; _ib._, 108.

[1053] King to Madison, Jan. 27, 1788; King, i, 316.

[1054] _Ib._, 317.

[1055] Elliott, ii, 40.

[1056] Harding, 48. These towns were bitterly opposed to the
Constitution. Had they sent delegates, Massachusetts surely would have
rejected the Constitution; for even by the aid of the deal hereafter
described, there was a very small majority for the Constitution. And if
Massachusetts had refused to ratify it, Virginia would, beyond the
possibility of a doubt, have rejected it also. (See _infra_, chaps. X,
XI, and XII.) And such action by Massachusetts and Virginia would, with
absolute certainty, have doomed the fundamental law by which the Nation
to-day exists. Thus it is that the refusal of forty-six Massachusetts
towns to send representatives to the State Convention changed the
destiny of the Republic.

[1057] Hill to Thatcher, Dec. 12, 1787; _Hist. Mag._ (2d Series), vi,
259.

[1058] Lee to Thatcher, Jan. 23, 1788; _ib._, 266-67.

[1059] _Ib._, 267.

[1060] _Ib._

[1061] Bangs to Thatcher, Jan. 1, 1788; _Hist. Mag._ (2d Series), vi,
260.

[1062] Sewall to Thatcher, Jan. 5, 1788; _Hist. Mag._ (2d Series), vi,
260-61.

[1063] Savage to Thatcher, Jan. 11, 1788; _ib._, 264.

[1064] Barrell to Thatcher, Jan. 15, 1788; _ib._, 265.

[1065] Wait to Thatcher, Jan. 8, 1788; _Hist. Mag._ (2d Series), vi,
261. Wait was an unusually intelligent and forceful editor of a New
England newspaper, the _Cumberland Gazette_. (_Ib._, 258.)

[1066] Gore to Thatcher, Dec. 30, 1787; _ib._, 260.

[1067] Lincoln to Washington, Feb. 3, 1788; _Cor. Rev._: Sparks, iv,
206.

[1068] See _infra_.

[1069] King to Madison, Jan. 27, 1788; King, i, 317.

[1070] Elliott, ii, 105-06.

[1071] _Ib._, 101.

[1072] Elliott, ii, 102.

[1073] _Ib._, 28.

[1074] _Ib._, 96.

[1075] _Ib._, 94.

[1076] _Ib._, 80.

[1077] _Ib._, 48.

[1078] Elliot, ii, 133.

[1079] _Ib._, 136-37.

[1080] _Ib._, 16.

[1081] _Ib._, 111.

[1082] _Ib._, 148.

[1083] _Ib._, 44.

[1084] Elliott, ii, 102-04. Mr. Thatcher made the best summary of the
unhappy state of the country under the Confederation. (_Ib._, 141-48.)

[1085] King to Madison, Jan. 20, 1788; King, i, 314.

[1086] Rives, ii, 524-25. "To manage the cause against them (the jealous
opponents of the Constitution) are the present and late governor, three
judges of the supreme court, fifteen members of the Senate, twenty-four
among the most respectable of the clergy, ten or twelve of the first
characters at the bar, judges of probate, high sheriffs of counties, and
many other respectable people, merchants, &c., Generals Heath, Lincoln,
Brooks, and others of the late army." (Nathaniel Gorham to Madison,
quoted in _ib._)

[1087] "Hancock has committed himself in our favor.... You will be
astonished, when you see the list of names that such an union of men has
taken place on this question. Hancock will, hereafter, receive the
universal support of Bowdoin's friends; _and we told him, that, if
Virginia does not unite, which is problematical, he is considered as the
only fair candidate for President_." (King to Knox, Feb. 1, 1788; King,
i, 319. The italics are those of King.)

[1088] _Ib._, ii, 525.

[1089] Elliott, ii, 178-81.

[1090] _Ib._, 140.

[1091] Elliott, ii, 153.

[1092] Madison to Randolph, April 10, 1788; _Writings_: Hunt, v, 117.

[1093] Elliott, ii, 159-61.

[1094] Widgery to Thatcher, Feb. 8, 1788; _Hist. Mag._ (2d Series), vi,
270.

[1095] _Ib._

[1096] Elliott, ii, 218.

[1097] Widgery to Thatcher, Feb. 8, 1788; _Hist. Mag._ (2d Series), vi,
270-71.

[1098] King to Madison, Feb. 6, 1788; King, i, 320.

[1099] Gerry, in Ford: _P. on C._, 1-23.

[1100] _Ib._, 23. When a bundle of copies of Gerry's pamphlet was
received by the New York Anti-Constitutionalists in Albany County, they
decided that it was "in a style too sublime and florid for the common
people in this part of the country." (_Ib._, 1.)

[1101] During the debates the _Boston Gazette_ published the following
charge that bribery was being employed to get votes for the
Constitution:--

/#
     _BRIBERY AND CORRUPTION!!!_

     "The most diabolical plan is on foot to corrupt the members of
     the Convention, who oppose the adoption of the new Constitution.
     Large sums of money have been brought from a neighboring state
     for that purpose, contributed by the wealthy. If so, is it not
     probable there may be collections for the same accursed purpose
     nearer home? CENTINEL." (Elliott, ii, 51.)
#/

The Convention appointed a committee to investigate (_ib._); it found
that the charge was based on extremely vague rumor. (Harding, 103.)
There the matter appears to have been dropped.

More than eighty years afterward, Henry B. Dawson, the editor of the
_Historical Magazine_, a scholar of standing, asserted, personally, in
his publication: "It is very well known--indeed, the son and biographer
of one of the great leaders of the Constitutionalists in New York has
frankly admitted to us--_that enough members of the Massachusetts
Convention were bought with money_ from New York _to secure the
ratification of the new system by Massachusetts_." (_Hist. Mag._ (2d
Series), vi, 268, footnote, referring to Savage's letter to Thatcher
telling of the charge in the _Boston Gazette_.)

Professor Harding discredits the whole story. (Harding, 101-05.) It is
referred to only as showing the excited and suspicious temper of the
times.

[1102] Langdon to Washington, Feb. 28, 1788; _Cor. Rev._: Sparks, iv,
212. "At least three fourths of the property, and a large proportion of
the abilities in the State are friendly to the proposed system. The
opposition here, as has generally been the case, was composed of men who
were involved in debt." (Lear to Washington, June 22, 1788; _ib._,
224-25.)

[1103] Lear to Washington, June 2, 1788; _Cor. Rev._: Sparks, iv, 220.

[1104] Langdon to King, Feb. 23, 1788; King, i, 321-22.

[1105] Madison to Pendleton, March 3, 1788 (_Writings_: Hunt, v, 110),
and to Washington, March 3, 1788 (_ib._, 111); and to Randolph; March 3,
1788 (_ib._, 113).

[1106] Langdon to King, May 6, 1788; King, i, 328.

[1107] Washington to Lafayette, Feb. 7, 1788; _Writings_: Ford, xi, 220.

[1108] Marshall, ii, 127.

[1109] _Ib._

[1110] Washington to Madison, Jan. 10, 1788; _Writings_: Ford, xi, 208.




CHAPTER X

IN THE GREAT CONVENTION

    There is no alternative between the adoption of it [the
    Constitution] and anarchy. (Washington.)

    I look on that paper as the most fatal plan that could possibly
    be conceived to enslave a free people. (Henry.)


More, much more, went forward in the Virginia struggle than appeared
upon the surface. Noble as was the epochal debate in Virginia's
Constitutional Convention, it was not so influential on votes of the
members as were other methods[1111] employed by both sides. Very
practical politicians, indeed, were these contending moulders of
destiny.

Having in mind the Pennsylvania storm; with the picture before them of
the delicate and skillful piloting by which alone the Constitution had
escaped the rocks in the tempestuous Massachusetts seas; with the
hurricane gathering in New York and its low thunders heard even from
States that had ratified--the Virginia Constitutionalists took no
chances, neglected no precaution. Throughout the country the
Constitutionalists were now acting with disciplined dispatch.

Intelligence of the New Hampshire Convention, of their success in which
the Constitutionalists finally had made sure, was arranged to be carried
by swift riders and relays of horses across country to Hamilton in New
York; and "any expense which you may incur will be cheerfully repaid,"
King assured Langdon.[1112] As to Virginia, Hamilton wrote Madison to
send news of "_any decisive_ question ... if favorable ... by an
express ... with pointed orders to make all possible diligence, by
changing horses etc."; assuring Madison, as King did Langdon, that
"all expense shall be thankfully and liberally paid."[1113]

The Constitutionalists, great and small, in other States were watching
Virginia's Convention through the glasses of an infinite apprehension.
"I fear that overwhelming torrent, Patrick Henry," General Knox confided
to King.[1114] Even before Massachusetts had ratified, one Jeremiah Hill
thought that "the fate of this Constitution and the political Salvation
of the united States depend cheifly on the part that Virginia and this
State [Massachusetts] take in the Matter."[1115] Hamilton's lieutenant,
King, while in Boston helping the Constitutionalists there, wrote to
Madison: "You can with difficulty conceive the real anxiety experienced
in Massachusetts concerning your decision."[1116] "Our chance of success
depends on you," was Hamilton's own despairing appeal to the then leader
of the Southern Constitutionalists. "If you do well there is a gleam of
hope; but certainly I think not otherwise."[1117] The worried New York
Constitutionalist commander was sure that Virginia would settle the fate
of the proposed National Government. "God grant that Virginia may
accede. The example will have a vast influence."[1118]

Virginia's importance justified the anxiety concerning her action. Not
only was the Old Dominion preëminent in the part she had taken in the
Revolution, and in the distinction of her sons like Henry, Jefferson,
and Washington, whose names were better known in other States than those
of many of their own most prominent men; but she also was the most
important State in the Confederation in population and, at that time, in
resources. "Her population," says Grigsby, "was over three fourths of
all that of New England;... not far from double that of Pennsylvania;...
or from three times that of New York ... over three fourths of all the
population of the Southern States;... and more than a fifth of the
population of the whole Union."[1119]

The Virginia Constitutionalists had chosen their candidates for the
State Convention with painstaking care. Personal popularity, family
influence, public reputation, business and financial power, and
everything which might contribute to their strength with the people, had
been delicately weighed. The people simply would not vote against such
men as Pendleton, Wythe, and Carrington;[1120] and these and others
like them accordingly were selected by the Constitutionalists as
candidates in places where the people, otherwise, would have chosen
antagonists to the Constitution.

More than one fourth of the Virginia Convention of one hundred and
seventy members had been soldiers in the Revolutionary War; and nearly
all of them followed Washington in his desire for a strong National
Government. Practically all of Virginia's officers were members of the
Cincinnati; and these were a compact band of stern supporters of the
"New Plan."[1121] Some of the members had been Tories, and these were
stingingly lashed in debate by Mason; but they were strong in social
position, wealth, and family connections, and all of them were for the
Constitution.[1122]

No practical detail of election day had been overlooked by the
Constitutionalists. Colonel William Moore wrote to Madison, before the
election came off: "You know the disadvantage of being absent at
elections.... I must therefore entreat and conjure you--nay, command
you, if it were in my power--to be here."[1123] The Constitutionalists
slipped in members wherever possible and by any device.

Particularly in Henrico County, where Richmond was situated, had
conditions been sadly confused. Edmund Randolph, then Governor of the
State, who next to Washington was Virginia's most conspicuous delegate
to the Federal Convention, had refused to sign the Constitution and was,
therefore, popularly supposed to be against it. October 17, 1787, he
wrote a letter to the Speaker of the House of Delegates explaining his
reasons for dissent. He approved the main features of the proposed plan
for a National Government but declared that it had fatal defects, should
be amended before ratification, a new Federal Convention called to pass
upon the amendments of the various States, and, thereafter, the
Constitution as amended again submitted for ratification to State
Conventions.[1124] Randolph, however, did not send this communication to
the Speaker "lest in the diversity of opinion I should excite a contest
unfavorable to that harmony with which I trust that great subject will
be discussed."[1125] But it was privately printed in Richmond and
Randolph sent a copy to Washington. On January 3, 1788, the letter was
published in the _Virginia Gazette_ together with other correspondence.
In an additional paragraph, which does not appear in Randolph's letter
as reproduced in Elliott, he said that he would "regulate himself by the
spirit of America" and that he would do his best to amend the
Constitution prior to ratification, but if he could not succeed he would
accept the "New Plan" as it stood.[1126] But he had declared to Richard
Henry Lee that "either a monarchy or aristocracy will be generated" by
it.[1127]

Thus Randolph to all appearances occupied middle ground. But, publicly,
he was in favor of making strenuous efforts to amend the Constitution as
a condition of ratification, and of calling a second Federal Convention;
and these were the means by which the Anti-Constitutionalists designed
to accomplish the defeat of the "New Plan." The opponents of the
proposed National Government worked hard with Randolph to strengthen his
resolution and he gave them little cause to doubt their success.[1128]

But the Constitutionalists were also busy with the Governor and with
greater effect. Washington wrote an adroit and persuasive letter
designed to win him entirely over to a whole-hearted and unqualified
advocacy of the Constitution. The question was, said Washington, the
acceptance of the Constitution or "a dissolution of the Union."[1129]
Madison, in a subtle mingling of flattery, argument, and insinuation,
skillfully besought his "dear friend" Randolph to come out for the
Constitution fully and without reserve. If only Randolph had stood for
the Constitution, wrote Madison, "it would have given it a decided and
unalterable preponderancy," and Henry would have been "baffled."

The New England opposition, Madison assured Randolph, was from
"that part of the people who have a repugnance in general to good
government ... a part of whom are known to aim at confusion and are
suspected of wishing a reversal of the Revolution.... Nothing can be
further from your [Randolph's] views than the principles of the
different sets of men who have carried on their opposition under the
respectability of your name."[1130]

Randolph finally abandoned all opposition and resolved to support the
Constitution even to the point of resisting the very plan he had himself
proposed and insisted upon; but nobody, with the possible exception of
Washington, was informed of this Constitutionalist master-stroke until
the Convention met;[1131] and, if Washington knew, he kept the secret.
Thus, although the Constitutionalists were not yet sure of Randolph,
they put up no candidate against him in Henrico County, where the people
were very much opposed to the Constitution. To have done so would have
been useless in any event; for Randolph could have been elected almost
unanimously if his hostility to the proposed Government had been more
vigorous, so decided were the people's dislike and distrust of it, and
so great, as yet, the Governor's popularity. He wrote Madison a day or
two before the election that nothing but his personal popularity "could
send me; my politicks not being sufficiently strenuous against the
Constitution."[1132] The people chose their beloved young Governor,
never imagining that he would appear as the leading champion of the
Constitution on the Convention floor and actually oppose amending it
before ratification.[1133]

But the people were not in the dark when they voted for the only
candidate the Constitutionalists openly brought out in Henrico County.
John Marshall was for the proposed National Government, outright and
aboveboard. He was vastly concerned. We find him figuring out the result
of the election in northern Virginia and concluding "that the question
will be very nice."[1134] Marshall had been made the Constitutionalist
candidate solely because of his personal popularity. As it was, even the
people's confidence in him barely had saved Marshall.

"Marshall is in danger," wrote Randolph; "but F. [Dr. Foushee, the
Anti-Constitutionalist candidate] is not popular enough on other scores
to be elected, altho' he is perfectly a Henryite."[1135] Marshall
admitted that the people who elected Randolph and himself were against
the Constitution; and declared that he owed his own election to his
individual strength with the people.[1136] Thus two strong champions of
the Constitution had been secured from an Anti-Constitutionalist
constituency; and these were only examples of other cases.

The Anti-Constitutionalists, too, straining every nerve to elect their
men, resorted to all possible devices to arouse the suspicions,
distrust, and fears of the people. "The opposition to it [the
Constitution] ... is addressed more to the passions than to the reason,"
declared Washington.[1137]

Henry was feverishly active. He wrote flaming letters to Kentucky that
the Mississippi would be lost if the new plan of government were
adopted.[1138] He told the people that a religious establishment would
be set up.[1139] The Reverend John Blair Smith, President of Hampden
Sidney College, declared that Henry "has descended to lower artifices
and management ... than I thought him capable of."[1140] Writing to
Hamilton of the activities of the opposition, Washington asserted that
"their assiduity stands unrivalled";[1141] and he informed Trumbull
that "the opponents of the Constitution are indefatigable."[1142]

"Every art that could inflame the passions or touch the interests of men
have been essayed;--the ignorant have been told that should the proposed
government obtain, their lands would be taken from them and their
property disposed of;--and all ranks are informed that the prohibition
of the Navigation of the Mississippi (their favorite object) will be a
certain consequence of the adoption of the Constitution."[1143]

Plausible and restrained Richard Henry Lee warned the people that "by
means of taxes, the government may command the whole or any part of the
subjects' property";[1144] and that the Constitution "promised a large
field of employment to military gentlemen, and gentlemen of the law; and
in case the government shall be executed without convulsions, it will
afford security to creditors, to the clergy, salary-men and others
depending on money payments."[1145]

Nor did the efforts of the Virginia opponents of a National
establishment stop there. They spread the poison of personal slander
also. "They have attempted to vilify & debase the characters who formed"
the Constitution, complained Washington.[1146] These cunning expedients
on one side and desperate artifices on the other were continued during
the sitting of the Virginia Convention by all the craft and guile of
practical politics.

After the election, Madison reported to Jefferson in Paris that the
Northern Neck and the Valley had elected members friendly to the
Constitution, the counties south of the James unfriendly members, the
"intermediate district" a mixed membership, with Kentucky divided. In
this report, Madison counts Marshall fifth in importance of all
Constitutionalists elected, and puts only Pendleton, Wythe, Blair, and
Innes ahead of him.[1147]

When the Convention was called to order, it made up a striking and
remarkable body. Judges and soldiers, lawyers and doctors, preachers,
planters, merchants, and Indian fighters, were there. Scarcely a field
fought over during the long, red years of the Revolution but had its
representative on that historic floor. Statesmen and jurists of three
generations were members.[1148]

From the first the Constitutionalists displayed better tactics and
discipline than their opponents, just as they had shown greater skill
and astuteness in selecting candidates for election. They arranged
everything beforehand and carried their plans out with precision. For
the important position of President of the Convention, they agreed on
the venerable Chancellor, Edmund Pendleton, who was able, judicial, and
universally respected. He was nominated by his associate, Judge Paul
Carrington, and unanimously elected.[1149]

In the same way, Wythe, who was learned, trusted, and beloved, and who
had been the teacher of many members of the Convention, was made
Chairman of the Committee of the Whole. The Anti-Constitutionalists did
not dare to oppose either Pendleton or Wythe for these strategic places.
They had made the mistake of not agreeing among themselves on strong and
influential candidates for these offices and of nominating them before
the Constitutionalists acted. For the first time in Virginia's history,
a shorthand reporter, David Robertson, appeared to take down a
stenographic report of the debates; and this innovation was bitterly
resented and resisted by the opposition[1150] as a Constitutionalist
maneuver.[1151] Marshall was appointed a member of the committee[1152]
which examined the returns of the elections of members and also heard
several contested election cases.[1153]

[Illustration: GEORGE WYTHE]

At the beginning the Anti-Constitutionalists did not decide upon a plan
of action--did not carefully weigh their course of procedure. No sooner
had rules been adopted, and the Constitution and official documents
relating to it laid before the Convention, than their second tactical
mistake was made; and made by one of their very ablest and most
accomplished leaders. When George Mason arose, everybody knew that the
foes of the Constitution were about to develop the first move in their
order of battle. Spectators and members were breathless with suspense.
Mason was the author of Virginia's Constitution and Bill of Rights and
one of the most honorable, able, and esteemed members of the
Legislature.

He had been a delegate to the Federal Convention and, with Randolph, had
refused to sign the Constitution. Sixty-two years old, his snow-white
hair contrasting with his blazing dark eyes, his commanding stature clad
in black silk, his full, clear voice deliberate and controlled, George
Mason was an impressive figure as he stood forth to strike the first
blow at the new ordinance of Nationality.[1154] On so important a
subject, he did not think any rules should prevent "the fullest and
clearest investigation." God's curse would be small compared with "what
will justly fall upon us, if from any sinister views we obstruct the
fullest inquiry." The Constitution, declared Mason, should be debated,
"clause by clause," before any question was put.[1155]

The Constitutionalists, keen-eyed for any strategic blunder of their
adversaries, took instant advantage of Mason's bad generalship. Madison
suavely agreed with Mason,[1156] and it was unanimously resolved that
the Constitution should be "discussed clause by clause through all its
parts,"[1157] before any question should be put as to the instrument
itself or any part of it. Thus the opposition presented to the
Constitutionalists the very method the latter wished for, and had
themselves planned to secure, on their own initiative.[1158] The
strength of the foes of the proposed National Government was in
attacking it as a whole; their weakness, in discussing its specific
provisions. The danger of the Constitutionalists lay in a general debate
on the large theory and results of the Constitution; their safety, in
presenting in detail the merits of its separate parts.

While the fight over the Constitution was partly an economic class
struggle, it was in another and a larger phase a battle between those
who thought nationally and those who thought provincially. In hostile
array were two central ideas: one, of a strong National Government
acting directly on men; the other, of a weak confederated league merely
suggesting action to States. It was not only an economic contest, but
also, and even more, a conflict by those to whom "liberty" meant
unrestrained freedom of action and speech, against those to whom such
"liberty" meant tumult and social chaos.

The mouths of the former were filled with those dread and sounding words
"despotism" and "arbitrary power"; the latter loudly denounced "enemies
of order" and "foes of government." The one wanted no bits in the mouth
of democracy, or, at most, soft ones with loose reins and lax hand; the
other wished a stout curb, stiff rein, and strong arm. The whole
controversy, on its popular side, resounded with misty yet stirring
language about "liberty," "aristocracy," "tyranny," "anarchy,"
"licentiousness"; and yet "debtor," "creditor," "property and taxes,"
"payment and repudiation," were heard among the more picturesque and
thrilling terms. In this fundamental struggle of antagonistic theories,
the practical advantage for the hour was overwhelmingly with those who
resisted the Constitution.

They had on their side the fears of the people, who, as has appeared,
looked on all government with suspicion, on any vital government with
hostility, and on a great central Government as some distant and
monstrous thing, too far away to be within their reach, too powerful to
be resisted, too high and exalted for the good of the common man, too
dangerous to be tried. It was, to the masses, something new, vague, and
awful; something to oppress the poor, the weak, the debtor, the settler;
something to strengthen and enrich the already strong and opulent, the
merchant, the creditor, the financial interests.

True, the people had suffered by the loose arrangement under which they
now lived; but, after all, had not they and their "liberties" survived?
And surely they would suffer even more, they felt, under this stronger
power; but would they and their "liberties" survive its "oppression"?
They thought not. And did not many of the ablest, purest, and most
trusted public characters in the Old Dominion think the same? Here was
ammunition and to spare for Patrick Henry and George Mason, Tyler and
Grayson, Bland and Harrison--ammunition and to spare, with their guns
planted on the heights, if they could center their fire on the
Constitution as a single proposition.

But they had been sleeping and now awoke to find their position
surrendered, and themselves compelled, if Mason's resolutions were
strictly followed, to make the assault in piecemeal on detached parts of
the "New Plan," many of which, taken by themselves, could not be
successfully combated. Although they tried to recover their lost ground
and did regain much of it, yet the Anti-Constitutionalists were hampered
throughout the debate by this initial error in parliamentary
strategy.[1159]

And now the Constitutionalists were eager to push the fighting. The
soldierly Lee was all for haste. The Anti-Constitutionalists held back.
Mason protested "against hurrying them precipitately." Harrison said
"that many of the members had not yet arrived."[1160] On the third day,
the Convention went into committee of the whole, with the astute and
venerable Wythe in the chair. Hardly had this brisk, erect little
figure--clad in single-breasted coat and vest, standing collar and white
cravat, bald, except on the back of the head, from which unqueued and
unribboned gray hair fell and curled up from the neck[1161]--taken the
gavel before Patrick Henry was on his feet.

Henry moved for the reading of the acts by authority of which the
Federal Convention at Philadelphia had met,[1162] for they would show
the work of that Convention to be illegal and the Constitution the
revolutionary creature of usurped power. If Henry could fix on the
advocates of stronger law and sterner order the brand of lawlessness and
disorder in framing the very plan they now were championing, much of the
mistake of yesterday might be retrieved.

But it was too late. Helped from his seat and leaning on his crutches,
Pendleton was recognized by Wythe before Henry could get the eye of the
chair to speak upon his motion; and the veteran jurist crushed Henry's
purpose before the great orator could make it plain. "We are not to
consider," said Pendleton, "whether the Federal Convention exceeded
their powers." That question "ought not to influence our deliberations."
Even if the framers of the Constitution had acted without authority,
Virginia's Legislature afterwards had referred it to the people who had
elected the present Convention to pass upon it.[1163] Pendleton's brief
speech was decisive;[1164] Henry withdrew his motion; the preamble and
the first two sections of the first article of the Constitution were
laid before the committee and the destiny-determining debate began.

The Constitutionalists, who throughout the contest never made a mistake
in the men they selected to debate or the time when they should speak,
had chosen skillfully the parliamentary artillerist to fire their
opening gun. They did not wait for the enemy's attack, but discharged
the first shot themselves. Quickly there arose a broad, squat, ungainly
man, "deformed with fat," shaggy of brow, bald of head, gray-eyed, with
a nose like the beak of an eagle, and a voice clear and
emotionless.[1165] George Nicholas had been a brave, brilliant soldier
and was one of the ablest and best-equipped lawyers in the State. He was
utterly fearless, whether in battle on the field or in debate on the
floor. His family and connections were powerful. In argument and
reasoning he was the equal if not the superior of Madison himself; and
his grim personality made the meek one of Madison seem tender in
comparison. Nothing could disconcert him, nothing daunt his cold
courage. He probably was the only man in the Convention whom Henry
feared.[1166]

Nicholas was glad, he said, that the Convention was to act with the
"fullest deliberation." First he thrust at the method of the opposition
to influence members by efforts outside the Convention itself; and went
on with a clear, logical, and informed exposition of the sections then
under consideration. He ended by saying "that he was willing to trust
his own happiness, and that of his posterity, to the operation of that
system."[1167]

The Constitution's enemies, thus far out-pointed by its perfectly
trained and harmonious supporters, could delay no longer. Up rose the
idol and champion of the people. Although only fifty-two years old, he
had changed greatly in appearance since the days of his earlier
triumphs. The erect form was now stooped; spectacles now covered the
flashing eyes and the reddish-brown hair was replaced by a wig, which,
in the excitement of speech, he frequently pushed this way and that. But
the wizard brain still held its cunning, the magic tongue which,
twenty-three years ago had trumpeted Independence, still wrought its
spell.[1168] Patrick Henry began his last great fight.

What, asked Henry, were the reasons for this change of government? A
year ago the public mind was "at perfect repose"; now it was "uneasy and
disquieted." "A wrong step now ... and our republic may be lost." It was
a great consolidated Government that the Constitutionalists proposed,
solemnly asserted Henry. What right, he asked, had the framers of the
Constitution to say, "_We, the people_, instead of _We, the states_"? He
demanded the cause of that fundamental change. "Even from that
illustrious man [Washington] who saved us by his valor, I would have a
reason for his conduct." The Constitution-makers had no authority except
to amend the old system under which the people were getting along very
well. Why had they done what they had no power to do?[1169]

Thus Henry put the Constitutionalists on the defensive. But they were
ready. Instantly, Randolph was on his feet. He was thirty-seven years of
age, fashioned on noble physical lines, with handsome face and flowing
hair. His was one of Virginia's most distinguished families, his
connections were influential, and he himself was the petted darling of
the people. His luxuriant mind had been highly trained, his rich and
sonorous voice gave an added charm to his words.[1170] He was the
ostensible author[1171] of the plan on the broad lines of which the
Constitution finally had been built. His refusal to sign it because of
changes which he thought necessary, and his conversion to the extreme
Constitutionalist position, which he now, for the first time, was fully
to disclose, made him the strongest single asset the Constitutionalists
had acquired. Randolph's open, bold, and, to the public, sudden
championship of the Constitution was the explosion in the opposition's
camp of a bomb which they had hoped and believed their own ammunition.

Never before, said Randolph, had such a vast event come to a head
without war or force. It might well be feared that the best wisdom would
be unequal to the emergency and that passion might prevail over reason.
He warned the opposition that the chair "well knows what is order, how
to command obedience, and that political opinions may be as honest on
one side as on the other." Randolph then tried to explain his change. "I
had not even the glimpse of the genius of America," said he of his
refusal to sign the report of the Federal Convention. But it was now so
late that to insist on amendments before ratification would mean
"inevitable ruin to the Union";[1172] and he would strike off his arm
rather than permit that.

Randolph then reviewed the state of the country under the Confederation:
Congress powerless, public credit ruined, treaties violated, prices
falling, trade paralyzed, "and justice trampled under foot." The world
looks upon Americans "as little wanton bees, who had played for liberty,
but had no sufficient solidity or wisdom" to keep it. True, the Federal
Convention had exceeded its authority, but there was nothing else to be
done. And why not use the expression "We, the people"? Was the new
Government not for them? The Union is now at stake, and, exclaimed he,
"I am a friend to the Union."[1173]

The secret was out, at last; the Constitutionalists' _coup_ was
revealed. His speech placed Randolph openly and unreservedly on their
side. "The Governor has ... thrown himself fully into the federal
scale," gleefully reported the anxious Madison to the supreme
Nationalist chieftain at Mount Vernon.[1174] "The G[overno]r exhibited
a curious spectacle to view. Having refused to sign the paper [the
Constitution] everybody supposed him against it," was Jefferson's
comment on Randolph's change of front.[1175] Washington, perfectly
informed, wrote Jay in New York that "Mr. Randolph's declaration
will have considerable effect with those who had hitherto been
wavering."[1176] Theodoric Bland wrote bitterly to Arthur Lee
that, "Our chief magistrate has at length taken his party and appears
to be reprobated by the honest of both sides.... He has openly
declared for posterior amendments, or in other words, unconditional
submission."[1177]

All of Randolph's influence, popularity, and prestige of family were to
be counted for the Constitution without previous amendment; and this was
a far weightier force, in the practical business of getting votes for
ratification, than oratory or argument.[1178] So "the sanguine friends
of the Constitution counted upon a majority of twenty ... which number
they imagine will be greatly increased."[1179]

Randolph's sensational about-face saved the Constitution. Nothing that
its advocates did during these seething three weeks of able discussion
and skillful planning accomplished half so much to secure ratification.
Washington's tremendous influence, aggressive as it was tactful, which,
as Monroe truly said, "carried" the new National plan, was not so
practically effective as his work in winning Randolph. For, aside from
his uncloaked support, the Virginia Governor at that moment had a
document under lock and key which, had even rumor of it got abroad,
surely would have doomed the Constitution, ended the debate abruptly,
and resulted in another Federal Convention to deal anew with the
Articles of Confederation.

By now the Anti-Constitutionalists, or Republicans as they had already
begun to call themselves, also were acting in concert throughout the
country. Their tactics were cumbersome and tardy compared with the
prompt celerity of the well-managed Constitutionalists; but they were
just as earnest and determined. The Society of the Federal Republicans
had been formed in New York to defeat the proposed National Government
and to call a second Federal Convention. It opened correspondence in
most of the States and had agents and officers in many of them.

New York was overwhelmingly against the Constitution, and her Governor,
George Clinton, was the most stubborn and resourceful of its foes. On
December 27, 1787, Governor Randolph, under the formal direction of
Virginia's Legislature, had sent the Governors of the other States a
copy of the act providing for Virginia's Convention, which included the
clause for conferring with her sister Commonwealths upon the calling of
a new Federal Convention. The one to Clinton of New York was delayed in
the mails for exactly two months and eleven days, just long enough to
prevent New York's Legislature from acting on it.[1180]

After pondering over it for a month, the New York leader of the
Anti-Constitutionalist forces wrote Governor Randolph, more than three
weeks before the Virginia Convention assembled, the now famous letter
stating that Clinton was sure that the New York Convention, to be held
June 17, "will, with great cordiality, hold a communication with any
sister State on the important subject [a new Federal Convention] and
especially with one so respectable in point of importance, ability, and
patriotism as Virginia"; and Clinton assumed that the Virginia
Convention would "commence the measures for holding such
communications."[1181]

When Clinton thus wrote to Randolph, he supposed, of course, that the
Virginia Governor was against the Constitution. Had the New York
Executive known that Randolph had been proselyted by the
Constitutionalists, Clinton would have written to Henry, or Mason, or
taken some other means of getting his letter before the Virginia
Convention. Randolph kept all knowledge of Clinton's fatal communication
from everybody excepting his Executive Council. He did not make it
public until after the long, hard struggle was ended; when, for the
first time, too late to be of any effect, he laid the New York
communication before the Virginia Legislature which assembled just as
the Convention was adjourning.[1182]

Weighty as were the arguments and brilliant the oratory that made the
Virginia debate one of the noblest displays of intellect and emotion
which the world ever has seen, yet nothing can be plainer than that
other practices on both sides of that immortal struggle were more
decisive of the result than the amazing forensic duel that took place on
the floor of the Convention hall.

When one reflects that although the weight of fact and reason was
decisively in favor of the Constitutionalists; that their forces were
better organized and more ably led; that they had on the ground to help
them the most astute politicians from other States as well as from
Virginia; that Washington aggressively supported them with all his
incalculable moral influence; that, if the new National Government were
established, this herculean man surely would be President with all the
practical power of that office, of which patronage was not the
least--when one considers that, notwithstanding all of these and many
other crushing advantages possessed by the Constitutionalists, their
majority, when the test vote finally came, was only eight out of a total
vote of one hundred and sixty-eight; when one takes into account the
fact that, to make up even this slender majority, one or two members
violated their instructions and several others voted against the known
will of their constituents, it becomes plain how vitally necessary to
their cause was the Constitutionalists' capture of the Virginia
Governor.[1183]

The opponents of the proposed National Government never forgave him nor
was his reputation ever entirely reëstablished. Mason thereafter
scathingly referred to Randolph as "young A[rno]ld."[1184]

Answering Randolph, Mason went to the heart of the subject. "Whether the
Constitution be good or bad," said he, "it is a national government and
no longer a Confederation ... that the new plan provides for." The power
of direct taxation alone "is calculated to annihilate totally the state
governments." It means, said Mason, individual taxation "by two
different and distinct powers" which "cannot exist long together; the
one will destroy the other." One National Government is not fitted for
an extensive country. "Popular governments can only exist in small
territories." A consolidated government "is one of the worst curses that
can possibly befall a nation." Clear as this now was, when the
Convention came to consider the Judiciary clause, everybody would, Mason
thought, "be more convinced that this government will terminate in the
annihilation of the state governments."

But here again the author of Virginia's Bill of Rights made a tactical
mistake from the standpoint of the management of the fight, although it
was big-hearted and statesmanlike in itself. "If," said he, "such
amendments be introduced as shall exclude danger ... I shall most
heartily make the greatest concessions ... to obtain ... conciliation
and unanimity."[1185] No grindstone, this, to sharpen activity--no
hammer and anvil, this, to shape and harden an unorganized opposition
into a single fighting blade, wielded to bring victory or even to force
honorable compromise. The suggestion of conciliation before the first
skirmish was over was not the way to arouse the blood of combat in the
loose, undisciplined ranks of the opposition.

Swift as any hawk, the Constitutionalists pounced upon Mason's error,
but they seized it gently as a dove. "It would give me great pleasure,"
cooed Madison, "to concur with my honorable colleague in any
conciliatory plan." But the hour was now late, and he would postpone
further remarks for the time being.[1186]

So the Convention adjourned and the day ended with the
Constitutionalists in high spirits.[1187] Madison wrote to Washington
that "Henry & Mason made a lame figure & appeared to take different and
awkward ground. The Federalists [Constitutionalists][1188] are a good
deal elated by the existing prospect." Nevertheless, the timid Madison
fluttered with fear. "I dare not," wrote he, "speak with certainty as to
the decision. Kentucky has been extremely tainted and is supposed to be
generally adverse, and every possible piece of address is going on
privately to work on the local interests & prejudices of that & other
quarters."[1189]

The next day the building of the New Academy, where the Convention met,
was packed with an eager throng. Everybody expected Madison to engage
both Henry and Mason as he had intimated that he would do. But once more
the excellent management of the Constitutionalists was displayed.
Madison, personally, was not popular,[1190] he was physically
unimpressive, and strong only in his superb intellect. The time to
discharge the artillery of that powerful mind had not yet come. Madison
was not the man for this particular moment. But Pendleton was, and so
was "Light-Horse Harry" Lee. The Constitutionalists combined the ermine
and the sword. Virginia's most venerated jurist and her most dashing
soldier were ordered to the front. In them there was an appeal to much
that the Old Dominion still reverenced and loved, in spite of the
"levelling spirit" manifest there as well as in Massachusetts and other
States. So when all eyes were turned on Madison's seat, they beheld it
vacant. Madison had stayed away. Had he been present, he could not have
avoided speaking.

Dramatic, indeed, appeared the white-haired, crippled jurist, as,
struggling to his feet, he finally stood upon his crutches and faced the
Convention. He had been unused to public debate for many years, and was
thought to be so infirm that no one expected him to do more than make or
decide points of order and give his vote. Yet there the feeble old man
stood to answer the resistless Henry and the learned Mason. His ancient
friend and brother justice, Wythe, leaned forward from his chair to
catch the tones of the beloved voice. Tears rolled down the cheeks of
some of the oldest members who for decades had been Pendleton's
friends.[1191] The Constitutionalists had set the stage to catch the
emotions which they affected to despise, with the very character whose
strength was in that pure reasoning on which they pretended solely to
rely.

Without wasting a word, Pendleton came to the point. Henry, he said, had
declared that all was well before "this Federal system was thought of."
Was that accurate? In a few short sentences he showed that it was not.
There was, said Pendleton, "no quarrel between government and liberty;
the former is shield and protector of the latter. The war is between
government and licentiousness, faction, turbulence, and other violations
of the rules of society to preserve liberty." Why are the words "We, the
people," improper? "Who but the people have a right to form
government?... What have the state governments to do with it?" Had the
Federal Convention exceeded its powers? No. Because those powers were
"to propose, not to determine."

"Suppose," asked the venerable Pendleton, "the paper on your table [the
Constitution] dropped from one of the planets; the people found it, and
sent us here to consider whether it was proper for their adoption; must
we not obey them?" Of course. "Then the question must be between this
government and the Confederation," which "is no government at all." The
Confederation did not carry us through the war; "common danger and the
spirit of America" did that. The cry "United we stand--divided we fall,"
which "echoed and reëchoed through America--from Congress to the drunken
carpenter"--saved us in that dark hour. And Pendleton clearly, briefly,
solidly, answered every objection which Mason and Henry had made.
Nothing could have been more practically effective than his close. He
was of no party, Pendleton avowed; and his "age and situation" proved
that nothing but the general good influenced him.[1192]

The smouldering fires in Henry's blood now burned fiercely. This was the
same Pendleton who had fought Henry in his immortal resolution on the
Stamp Act in 1765 and in every other of those epochal battles for
liberty and human rights which Henry had led and won.[1193] But the
Constitutionalists gave the old war horse no chance to charge upon his
lifelong opponent. A young man, thirty-two years of age, rose, and,
standing within a few feet of the chair, was recognized. Six feet tall,
beautiful of face, with the resounding and fearless voice of a warrior,
Henry Lee looked the part which reputation assigned him. Descended from
one of the oldest and most honorable families in the colony, a graduate
of Princeton College, one of the most daring, picturesque, and
attractive officers of the Revolution, in which by sheer gallantry and
military genius he had become commander of a famous cavalry command, the
gallant Lee was a perfect contrast to the venerable Pendleton.[1194]

Lee paid tribute to Henry's shining talents; but, said he, "I trust that
he [Henry] is come to judge, and not to alarm." Henry had praised
Washington; yet Washington was for the Constitution. What was there
wrong with the expression "We, the people," since upon the people "it
is to operate, if adopted"? Like every Constitutionalist speaker, Lee
painted in somber and forbidding colors the condition of the country,
"all owing to the imbecility of the Confederation."[1195]

At last Henry secured the floor. At once he struck the major note of the
opposition. "The question turns," said he, "on that poor little
thing--the expression, 'We, the _people_; instead of the _states_.'" It
was an "alarming transition ... a revolution[1196] as radical as that
which separated us from Great Britain.... Sovereignty of the states ...
rights of conscience, trial by jury, liberty of the press, ... all
pretensions of human rights and privileges" were imperiled if not lost
by the change.

It _was_ the "despised" Confederation that had carried us through the
war. Think well, he urged, before you part with it. "Revolutions like
this have happened in almost every country in Europe." The new
Government may prevent "licentiousness," but also "it will oppress
and ruin the people," thundered their champion. The Constitution
was clear when it spoke of "sedition," but fatally vague when it
spoke of "privileges." Where, asked Henry, were the dangers the
Constitutionalists conjured up? Purely imaginary! If any arose, he
depended on "the American spirit" to defend us.

The method of amendment provided in the Constitution, exclaimed Henry,
was a mockery--it shut the door on amendment. "A contemptible minority
can prevent the good of the majority." "A standing army" will "execute
the execrable commands of tyranny," shouted Henry. And who, he asked,
will punish them? "Will your mace-bearer be a match for a disciplined
regiment?" If the Constitution is adopted, "it will be because we like a
great splendid" government. "The ropes and chains of consolidation" were
"about to convert this country into a powerful and mighty empire." The
Constitution's so-called checks and balances, sneered Henry, were
"rope-dancing, chain-rattling, ridiculous ... contrivances."

The Constitutionalists talked of danger if the Confederation was
continued; yet, under it, declared Henry, "peace and security, ease and
content" were now the real lot of all. Why, then, attempt "to terrify us
into an adoption of this new form of government?... Who knows the
dangers this new system may produce? They are out of sight of the common
people; they cannot foresee latent consequences." It was the operation
of the proposed National Government "on the middling and lower classes
of people" that Henry feared. "This government" [the Constitution],
cried he, "is not a Virginian but an American government."

Throughout Henry's speech, in which he voiced, as he never failed to do,
the thought of the masses, a National Government is held up as a foreign
power--even one so restricted as the literal words of the Constitution
outlined. Had the Constitutionalists acknowledged those Nationalist
opinions which, in later years, were to fall from the lips of a young
member of the Convention and become the law of the land, the defeat of
the Constitution would have been certain, prompt, and overwhelming.

In the Constitution's chief executive, Henry saw "a great and mighty
President" with "the powers of a King ... to be supported in extravagant
magnificence." The National Government's tax-gatherers would "ruin you
with impunity," he warned his fellow members and the people they
represented. Did not Virginia's own "state sheriffs, those unfeeling
blood-suckers," even "under the watchful eye of our legislature commit
the most horrid and barbarous ravages on our people? ... Lands have been
sold," asserted he, "for 5 shillings which were worth one hundred
pounds." What, then, would happen to the people "if their master had
been at Philadelphia or New York?" asked Henry. "These harpies may
search at any time your houses and most secret recesses." Its friends
talked about the beauty of the Constitution, but to Henry its features
were "horribly frightful. Among other deformities, it has an awful
squinting; it squints toward monarchy."

The President, "your American chief," can make himself absolute,
dramatically exclaimed the great orator. "If ever he violates the
laws ... he will come at the head of his army to carry everything before
him; or he will give bail, or do what Mr. Chief Justice will order him."
But will he submit to punishment? Rather, he will "make one bold push
for the American throne," prophesied Henry. "We shall have a king; the
army will salute him monarch: your militia will leave you, and assist in
making him king and fight against you."[1197] It would be infinitely
better, he avowed, to have a government like Great Britain with "King,
Lords, and Commons, than a government so replete with such insupportable
evils" as the Constitution contained.

Henry spoke of the danger of the power of Congress over elections, and
the treaty-making power. A majority of the people were against the
Constitution, he said, and even "the adopting states have already
heart-burnings and animosity and repent their precipitate hurry....
Pennsylvania has been tricked into" ratification. "If other states who
have adopted it have not been tricked, still they were too much
hurried.[1198] ... I have not said the one hundred thousandth part of
what I have on my mind and wish to impart"--with these words of warning
to the Constitutionalists, Henry closed by apologizing for the time he
had taken. He admitted that he had spoken out of order, but trusted that
the Convention would hear him again.[1199]

Studying this attack and defense of master swordsmen, following the
tactical maneuvers of America's ablest politicians, a partisan on one
side, yet personally friendly with members of the other, John Marshall
was waiting for the call that should bring him into the battle and, by
the method which he employed throughout his life, preparing to respond
when the Constitutionalist managers should give the word. He was
listening to the arguments on both sides, analyzing them, and, by that
process of absorption with which he was so peculiarly and curiously
gifted, mastering the subjects under discussion. Also, although casual,
humorous, and apparently indifferent, he nevertheless was busy, we may
be sure, with his winning ways among his fellow members.

Patrick Henry's effort was one of the two or three speeches made during
the three weeks of debate which actually may have had an effect upon
votes.[1200] The Constitutionalists feared that Henry would take the
floor next morning to follow up his success and deepen the profound
impression he had made. To prevent this and to break the force of
Henry's onslaught, they put forward Governor Randolph, who was quickly
recognized by the chair. Madison and Nicholas were held in
reserve.[1201]

But in vain did Randolph employ his powers of oratory, argument, and
persuasion in the great speech beginning "I am a child of the
Revolution," with which he attempted to answer Henry. There is no peace;
"the tempest growls over you.... Justice is suffocated," he said; legal
proceedings to collect debts are "obscured by legislative mists." As an
illustration of justice, consider the case of Josiah Philips, executed
without trial or witness, on a bill of attainder passed without debate
on the mere report of a member of the Legislature: "_This made the
deepest impression on my heart and I cannot contemplate it without
horror_."[1202] As to "the American spirit" expressed through the
militia being competent to the defense of the State, Randolph asked:
"Did ever militia defend a country?"

Randolph's speech was exhaustive and reached the heights of real
eloquence. It all came to this, he said, Union or Dissolution, thus
again repeating the argument Washington had urged in his letter to
Randolph. "Let that glorious pride which once defied the British
thunder, reanimate you again," he cried dramatically.[1203] But his
fervor, popularity, and influence were not enough.

Marshall, when he came to speak later in the debate, made the same
mistake. No more striking illustration exists of how public men, in the
hurry and pressure of large affairs, forget the most important events,
even when they themselves were principal actors in them.

Although the time had not properly come for the great logician of the
Constitution to expound it, the situation now precipitated the
psychological hour for him to strike. The chair recognized a slender,
short-statured man of thirty-seven, wearing a handsome costume of blue
and buff with doubled straight collar and white ruffles on breast and at
wrists. His hair, combed forward to conceal baldness, was powdered and
fell behind in the long beribboned queue of fashion. He was so small
that he could not be seen by all the members; and his voice was so weak
that only rarely could he be heard throughout the hall.[1204] Such was
James Madison as he stood, hat in hand and his notes in his hat, and
began the first of those powerful speeches, the strength of which, in
spite of poor reporting, has projected itself through more than a
hundred years.

At first he spoke so low that even the reporter could not catch what he
said.[1205] He would not, remarked Madison, attempt to impress anybody
by "ardent professions of zeal for the public welfare." Men should be
judged by deeds and not by words. The real point was whether the
Constitution would be a good thing or a bad thing for the country. Henry
had mentioned the dangers concealed in the Constitution; let him specify
and prove them. One by one he caught and crushed Henry's points in the
jaws of merciless logic.

What, for the gentle Madison, was a bold blow at the opposition shows
how even he was angered. "The inflammatory violence wherewith it [the
Constitution] was opposed by designing, illiberal, and unthinking minds,
begins to subside. I will not enumerate the causes from which, in my
conception, the heart-burnings of a majority of its opposers have
originated." His argument was unanswerable as a matter of pure reason
and large statesmanship, but it made little headway and had only slight
if any influence. "I am not so sanguine," reported Washington's nephew
to the General at Mount Vernon, "as to ... flatter myself that he made
many converts."[1206]

The third gun of the powerful battery which the Constitutionalists had
arranged to batter down the results of Henry's speech was now brought
into action. George Nicholas again took the floor. He was surprised that
Mason's resolution to debate the Constitution clause by clause had not
been followed. But it had not been, and therefore he must speak at
large. While Nicholas advanced nothing new, his address was a
masterpiece of compact reasoning.[1207]

Age and middle age had spoken for the Constitution; voices from the
bench and the camp, from the bar and the seats of the mighty, had
pleaded for it; and now the Constitutionalists appealed to the very
young men of the Convention through one of the most attractive of their
number. The week must not close with Henry's visions of desolation
uppermost in the minds of the members. On Saturday morning the chair
recognized Francis Corbin of Middlesex. He was twenty-eight years old
and of a family which had lived in Virginia from the early part of the
seventeenth century. He had been educated in England at the University
of Cambridge, studied law at the Inner Temple, was a trained lawyer, and
a polished man of the world.

Corbin made one of the best speeches of the whole debate. On the
nonpayment of our debts to foreign nations he was particularly strong.
"What!" said he, "borrow money to discharge interest on what was
borrowed?... Such a plan would destroy the richest country on earth." As
to a Republican Government not being fitted for an extensive country, he
asked, "How small must a country be to suit the genius of
Republicanism?" The power of taxation was the "lungs of the
Constitution." His defense of a standing army was novel and ingenious.
The speech was tactful in the deference paid to older men, and so
captivating in the pride it must have aroused in the younger members
that it justified the shrewdness of the Constitutionalist generals in
putting forward this youthful and charming figure.[1208]

Of course Henry could not follow a mere boy. He cleverly asked that
Governor Randolph should finish, as the latter had promised to
do.[1209] Randolph could not avoid responding; and his speech, while
very able, was nevertheless an attempt to explode powder already
burned.[1210] Madison saw this, and getting the eye of the chair
delivered the second of those intellectual broadsides, which, together
with his other mental efforts during the Constitutional period, mark him
as almost the first, if not indeed the very first, mind of his
time.[1211] The philosophy and method of taxation, the history and
reason of government, the whole range of the vast subject were
discussed,[1212] or rather begun; for Madison did not finish, and took
up the subject four days later. His effort so exhausted him physically
that he was ill for three days.[1213]

Thus fortune favored Henry. The day, Saturday, was not yet spent. After
all, he could leave the last impression on the members and spectators,
could apply fresh color to the picture he wished his hearers to have
before their eyes until the next week renewed the conflict. And he could
retain the floor so as to open again when Monday came. The art of Henry
in this speech was supreme. He began by stating the substance of Thomas
Paine's terrific sentence about government being, at best, "a necessary
evil"; and aroused anew that repugnance to any sturdy rule which was a
general feeling in the breasts of the masses.

Both the Confederation and the proposed Constitution were "evils,"
asserted Henry, and the only question was which was the less. Randolph
and Madison incautiously had referred to maxims. Henry seized the word
with infinite skill. "It is impiously irritating the avenging hand of
Heaven ... to desert those maxims which alone can preserve liberty," he
thundered. They were lowly maxims, to be sure, "poor little, humble
republican maxims"; but "humble as they are" they alone could make a
nation safe or formidable. He rang the changes on the catchwords of
liberty.

Then Henry spoke of Randolph's change of front. The Constitution "was
once execrated" by Randolph. "It seems to me very strange and
unaccountable that that which was the object of his execration should
now receive his encomiums. Something extraordinary must have operated so
great a change in his opinion." Randolph had said that it was too late
to oppose the "New Plan"; but, answered Henry, "I can never believe that
it is too late to save all that is precious." Henry denied the woeful
state of the country which the Constitutionalist speakers had pictured.
The "imaginary dangers" conjured by them were to intimidate the people;
but, cried Henry, "fear is the passion of slaves." The execution of
Josiah Philips under the bill of attainder was justifiable. Philips had
been a "fugitive murderer and an outlaw" leader of "an infamous
banditti," perpetrator of "the most cruel and shocking barbarities ...
an enemy to human nature."[1214]

It was not true, declared Henry, that the people were discontented under
the Confederation--at least the common people were not; and it was the
common people for whom he spoke. But, of course, sneered that consummate
actor, "the middling and lower ranks of people have not those
illuminated ideas" which the "well-born" are so happily possessed of;
"they [the common people] cannot so readily perceive latent objects." It
was only the "illuminated imaginations" and the "microscopic eyes of
modern statesmen" that could see defects where there were none.

Henry hinted with great adroitness at the probable loss of the
Mississippi, which was the sorest point with the members from Kentucky;
and, having injected the poison, passed on to let it do its work against
the time when he would strike with all his force. Then he appealed to
state pride. "When I call this the most mighty state in the Union, do I
not speak the truth? Does not Virginia surpass every state?" Of course!
There was no danger, then, that Virginia would be left out of the Union,
as the Constitutionalists had hinted might happen if Virginia rejected
the Constitution; the other States would be glad to have her on her own
terms.

Henry went over a variety of subjects and then returned to his favorite
idea of the National Government as something foreign. Picking up a
careless word of Randolph, who had spoken of the people as a "herd,"
Henry said that perhaps the words "We, the people," were used to
recommend it to the masses, "to those who are likened to a _herd_; and
by the operation of this blessed system are to be transformed from
respectable, independent citizens, to abject, dependent subjects or
slaves."[1215] Finally, when he felt that he had his hearers once more
under his spell, Henry, exclaiming that a Bill of Rights was vital,
asked for adjournment, which was taken, the great orator still holding
the floor.


FOOTNOTES:

[1111] Though "practical," these methods were honorable, as far as the
improper use of money was concerned.

[1112] King to Langdon, June 10, 1788; King, i, 331.

[1113] Hamilton to Madison, May 19, 1788; _Works_: Lodge, ix, 430. See
also _ib._, 432.

[1114] Knox to King, June 19, 1788; King, i, 335.

[1115] Hill to Thatcher, Jan. 1, 1788; _Hist. Mag._ (2d Series), vi,
261.

[1116] King to Madison, May 25, 1788; King, i, 329.

[1117] Hamilton to Madison, June 27, 1788; _Works_: Lodge, ix, 436.
Virginia had ratified the Constitution two days before Hamilton wrote
this letter, but the news did not reach New York until long afterward.

[1118] Hamilton to Madison, June 8, 1788; _Works_: Lodge, ix, 432-34.

[1119] Grigsby, i, 8. About three eighths of Virginia's population were
slaves valued at many millions of dollars.

[1120] Grigsby, i, footnote to 50; also 32; and see examples given by
Judge Scott, in Scott, 235-38.

[1121] Grigsby, i, footnote to 36; and see 29, 62, 339.

[1122] Henry, ii, 339; and Rowland, ii, 223 _et seq._

[1123] Rives, ii, 549.

[1124] Randolph to the Speaker of the House of Delegates, Oct. 10, 1787;
Elliott, i, 482-91; also Ford: _P. on C._, 261-76.

[1125] Randolph to Page and others, Dec. 2, 1787; _American Museum_,
iii, 61 _et seq._

[1126] _Ib._

[1127] Lee to Randolph, Oct. 16, 1787; Elliott, i, 503. Upon the
publication of this correspondence a young Richmond attorney, Spencer
Roane, the son-in-law of Patrick Henry, in an article signed "Plain
Dealer," published in the _Virginia Gazette_, attacked Randolph for
inconsistency. "Good God! How can the first magistrate and father of a
pure republican government ... before his proposed plan of amendment has
been determined upon, declare that he will accept a Constitution which
is to beget a monarchy or an aristocracy?... Can he foretell future
events? How else can he at this time discover what the 'spirit of
America' is?... How far will this principle carry him? Why, ... if the
dominion of Shays, instead of that of the new Constitution, should be
generally accepted, and become 'the spirit of America,' his Excellency
would turn Shayite." (Plain Dealer to Randolph, Feb. 13, 1788; Ford:
_Essays on the Constitution_, 385; also _Branch Hist. Papers_, 47.)
Roane's letter is important as the first expression of his hostility to
the Constitution. He was to become the determined enemy of Marshall;
and, as the ablest judge of the Virginia Court of Appeals, the chief
judicial foe of Marshall's Nationalism. (See vol. III of this work.)

[1128] "The importunities of some to me in public and private are
designed to throw me unequivocally and without condition, into the
opposition." (Randolph to Madison, Feb. 29, 1788; Conway, 101.)

[1129] Washington to Randolph, Jan. 8, 1788; _Writings_: Ford, xi,
204-06.

[1130] Madison to Randolph, Jan. 10, 1788; _Writings_: Hunt, v, 79-84;
and see same to same, Jan. 20, 1788 (_ib._, 86-88); and March 3, 1788
(_ib._, 113-14).

[1131] "If he [Randolph] approves it at all, he will do it feebly."
(Washington to Lafayette, April 28, 1788; _Writings_: Ford, xi, 255; and
see Madison to Jefferson, April 22, 1788; _Writings_: Hunt, v, 121.)

[1132] Randolph to Madison, Feb. 29, 1788; quoted in Conway, 101.

[1133] "Randolph was still looked upon as an Anti-Federalist by the
uninitiated." But his "position ... was evidently no secret to
Washington." (Rowland, ii, 210. See also _ib._, 225, 227, 231.)

[1134] _Ib._

[1135] Randolph to Madison, Feb. 29, 1788; Conway, 101.

[1136] Scott, 160.

[1137] Washington to Carter, Dec. 14, 1787; _Writings_: Ford, xi,
footnote to 210.

[1138] Smith to Madison, June 12, 1788; Rives, ii, footnote to p. 544.

[1139] _Ib._ "The Baptist interest ... are highly incensed by Henry's
opinions and public speeches." (Randolph to Madison, Feb. 29, 1788;
Conway, 101.)

[1140] Smith to Madison, June 12, 1788; Rives, ii, 544.

[1141] Washington to Hamilton, Nov. 10, 1787; _Writings_: Ford, xi,
footnote to p. 181.

[1142] Washington to Trumbull, Feb. 5, 1788; _Writings_: Ford, 212. From
the first Washington attributed much of the opposition throughout the
country to the fact that popular leaders believed that the new National
Government would lessen their importance in their respective States.
"The governors elect or to be elected, the legislators, with a long
tribe of others whose political importance will be lessened if not
annihilated" were, said Washington, against a strong central Government.
(Washington to Knox, Feb. 3, 1787; Sparks, ix, 230; and see Graydon,
340.)

[1143] Washington to Lincoln, April 2, 1788; _ib._, xi, footnote to
239-40.

[1144] "Letters of a Federal Farmer," no. 3; Ford: _P. on C._, 301.

[1145] _Ib._, no. 5, 319.

[1146] Washington to Armstrong, April 25, 1788; _Writings_: Ford, xi,
252; and to Petit, Aug. 16, 1788; _ib._, 300.

[1147] Madison to Jefferson, April 22, 1788; _Writings_: Hunt, v,
120-22.

[1148] Grigsby, i, 34-35; and footnote to 49.

[1149] Grigsby, i, 64-66; and Elliott, iii, 1.

[1150] Rowland, ii, 222.

[1151] Henry, ii, 345. So angered were the Anti-Constitutionalists that
they would not correct or revise Robertson's reports of their speeches.
(_Ib._)

[1152] Elliott, iii, 1.

[1153] _Ib._, 5-6; also, Journal of the Convention, 7-11.

[1154] Grigsby, i, 69-70. In the descriptions of the dress, manners, and
appearance of those who took part in the debate, Grigsby's account has
been followed. Grigsby took infinite pains and gave many years to the
gathering and verifying of data on these picturesque subjects; he was
personally intimate with a large number of the immediate descendants of
the members of the Convention and with a few who were eye-witnesses; and
his reconstruction of the scenes in the Convention is believed to be
entirely accurate.

[1155] Elliott, iii, 3.

[1156] Mason's clause-to-clause resolve was, "contrary to his
expectations, concurred in by the other side." (Madison to Washington,
June 4, 1788; _Writings_: Hunt, v, footnote to 124.) And see
Washington's gleeful report to the New York Constitutionalists of
Mason's error: "This [Mason's resolve] was as unexpected as acceptable
to the federalists, and their ready acquiescence seems to have somewhat
startled the opposite side for fear they had committed themselves."
(Washington to Jay, June 8, 1788; _Writings_: Ford, xi, 271.)

[1157] Elliott, iii, 4.

[1158] Grigsby, i, 77.

[1159] For a discussion of this tactical blunder of the opponents of the
Constitution, see Grigsby, i, 72.

[1160] Elliott, iii, 4.

[1161] Grigsby, i, 75.

[1162] Elliott, iii, 6.

[1163] _Ib._

[1164] Grigsby, i, 77.

[1165] _Ib._, 79.

[1166] _Ib._, 78, 79, 140, 141, 246, 247.

[1167] Elliott, iii, 7-21.

[1168] Grigsby, i, 76.

[1169] Elliott, iii, 21-23.

[1170] Grigsby, i, 83-84.

[1171] Madison was the real designer of the Virginia plan. (Rives, ii,
chap. xxvii.)

[1172] This was the point Washington had made to Randolph. It is
interesting that, throughout the debate, Randolph, over and over again,
used almost the exact language of Washington's letter.

[1173] Elliott, iii, 23-29. Randolph's speech was apologetic for his
change of heart. He was not "a candidate for popularity": he had
"satisfied his conscience," etc.

[1174] Madison to Washington, June 4, 1788; _Writings_: Hunt, v, 124.

[1175] Jefferson to Short, Sept. 20, 1788; quoting a private letter from
Virginia of July 12; _Works_: Ford, v, 431.

[1176] Washington to Jay, June 8, 1788; _Writings_: Ford, xi, 271.

[1177] Bland to Lee, June 13, 1788; Rowland, ii, 243-44. Evidently the
opposition was slow to believe that Randolph had irrevocably deserted
them; for Bland's letter was not written until Randolph had made his
fourth extended speech ten days later.

[1178] Scott, 160.

[1179] Washington to Jay, June 8, 1788; _Writings_: Ford, xi, 271.

[1180] From this delay Randolph's enemies have charged that his letter
to Clinton was not posted in time. Much as Randolph had to answer for,
this charge is unjust. Letters between Richmond and New York sometimes
were two or three months on the way. (See _supra_, chap. VII.)

[1181] Clinton to Randolph, May 8, 1788; Conway, 110-12.

[1182] Clinton to Randolph, May 8, 1788; Conway, 110-12; Henry, ii, 363;
Rowland, ii, 276-79; and see _infra_, chap. XII.

[1183] Randolph's change was ascribed to improper motives. Mason was
almost offensive in his insinuations during the debate and Henry openly
so, as will appear. Randolph's last words to the Convention were
explanatory and defensive.

Washington made Randolph his first Attorney-General and he exercised
great power for a time. "The Government is now solely directed by
Randolph," complained Jefferson. (Conway, 140.) While Washington
certainly did not appoint Randolph as a reward for his conduct in the
struggle over the Constitution, it is a reasonable inference that he
would not have been made a member of the Cabinet if he had not abandoned
his opposition, supported the Constitution, and suppressed Clinton's
letter.

Virginia had the head of the Cabinet in Jefferson as Secretary of State;
Washington himself was from Virginia; and since there were numerous men
from other States as well as or better equipped than Randolph for the
Attorney-Generalship, his selection for that place is, at least,
noteworthy. It gave Virginia the Presidency and two members of a Cabinet
which numbered only four in all.

When the Attorney-Generalship was tendered to Randolph, he wrote to
Madison bitterly resenting "the load of calumny which would be poured
upon" him if he should accept. "For," writes Randolph, "it has been
insinuated ... that my espousal of the Constitution had alienated even
its friends from me, who would not elect me to the house of
representatives. The insinuation has been carried so far as to apply it
to the disposal of offices under the government." (Randolph to Madison,
July 19, 1789; Conway, 127-28.)

[1184] Rowland, ii, 308.

[1185] Elliott, iii, 29-34.

[1186] Elliott, iii, 34-35.

[1187] Grigsby, i, 99.

[1188] Those who supported the Constitution were called "Federalists"
and its opponents "Anti-Federalists"; but, for sake of clearness, the
terms "Constitutionalists" and "Anti-Constitutionalists" are employed in
these chapters.

[1189] Madison to Washington, June 4, 1788; _Writings_: Hunt, v,
footnote to 123-24.

[1190] Grigsby, i, footnote to 46.

[1191] Grigsby, i, 101-02. Scenes of a similar character occurred
several times in both Senate and House between 1900 and 1911, when one
of our elder statesmen, who plainly was nearing the end of life, rose to
speak. More than one notable contest, during that decade, was decided by
the sympathetic votes of aged friends who answered the call of long
years of affection.

[1192] Elliott, iii, 35-41.

[1193] See _infra_, chap, III; also Grigsby, i, 105-06.

[1194] _Ib._, 106-09.

[1195] Elliott, iii, 41-43.

[1196] Elliott, iii, 44. The word "revolution" is printed "resolution"
in Elliott's _Debates_. This is a good example of the inaccuracy of
Elliott's reprint of Robertson's stenographic report. In Robertson's
_Debates_, published in 1805, the word is correctly printed
"revolution." I have cited Elliott only because it is accessible. Even
Robertson's report is admittedly meager and unsatisfactory; all the
more, therefore, is it to be regretted that Elliott's reprint should be
so inaccurate.

[1197] At this point the reporter, unable to follow Henry's speech,
notes that he "strongly and pathetically expatiated on the probability
of the President's enslaving America and the horrid consequences that
must result." (Elliott, iii, 60.)

[1198] Henry had not heard of the Constitutionalists' bargain with
Hancock in Massachusetts.

[1199] Elliott, iii, 43-64.

[1200] General Posey, a Revolutionary officer, who was for the
Constitution, afterwards said that Henry's speech made him believe that
the Constitution would destroy liberty. Another intelligent man who
heard Henry's speech said that when the great orator pictured the
President at the head of the army, he felt his own wrists for the
shackles, and that his place in the gallery suddenly seemed like a
dungeon. (Grigsby, i, 118-19.)

[1201] Grigsby, i, 121.

[1202] Elliott, iii, 64-86. In the debate, much was made of this famous
case. Yet Philips was not executed under the provisions of the law
Randolph referred to. When arrested, he was indicted, tried, and
convicted in the General Court; and he was hanged by sentence of the
court, December 4, 1778.

Although, at that time, Randolph was Attorney-General of Virginia and
actually prosecuted the case; and although Henry was Governor and
ordered the arrest of Philips (Henry, i, 611-13), yet, ten years later,
both had forgotten the facts, and Randolph charged, and Henry in reply
admitted, that Philips had been executed under the bill of attainder
without trial. (Jefferson to Wirt, Oct. 14, 1814; _Works_: Ford, xi,
407.) The bill of attainder was drawn by Jefferson. It appears in _ib._,
ii, 330-36.

[1203] Again, Randolph's speech was marred by the note of personal
explanation that pervaded it. "The rectitude of my intentions";
"ambition and popularity are no objects with me"; "I expect, in the
course of a year, to retire to that private station which I most
sincerely and cordially prefer to all others,"--such expressions gave to
his otherwise aggressive and very able appeal a defensive tone.

[1204] Grigsby, i, 130. Madison's apparel at this Convention was as
ornate as his opinions were, in his opponents' eyes, "aristocratic."

[1205] Elliott, iii, 86. See entire speech, _ib._, 86-96.

[1206] Bushrod Washington to Washington, June 6, 1788; _Writings_:
Sparks, ix, 378. But Madison gave Henry an opening through which that
veteran orator drove like a troop of horse, as far as practical and
momentary effect was concerned. Madison described the new government as
partly National and partly Federal. (Elliott, iii, 94; and see Henry's
use of this, _ib._, 171; also _infra_.)

[1207] Elliott, iii, 97-103.

[1208] Elliott, iii, 104-14.

[1209] Elliott, iii, 114.

[1210] _Ib._, 114-28.

[1211] Madison was equaled only by Hamilton in sheer intellectuality,
but he was inferior to that colossus in courage and constructive genius.

[1212] _Ib._, 128-37.

[1213] Madison to Hamilton, June 9, 1788; Hamilton MSS., Lib. Cong.
Madison's four famous speeches in this Convention, are properly parts of
one comprehensive exposition. (See Madison's own notes for the third of
these speeches in _Writings_: Hunt, v, 148.) Mr. Hunt also prints
accurately Robertson's report of the speeches themselves in that volume.
They cannot be summarized here, but should be read in full.

[1214] See _supra_, footnote to 393.

[1215] Elliott, iii, 137-50.




CHAPTER XI

THE SUPREME DEBATE

    There will undoubtedly be a greater weight of abilities against
    the adoption in this convention than in any other state.
    (Washington.)

    What are the objects of the National Government? To protect the
    United States and to promote the general welfare. (Marshall, in
    his first debate.)


Now appeared the practical political managers from other States. From
Saturday afternoon until Monday morning there was great activity in both
camps. The politicians of each side met in secret conference to plan the
operations of the coming week and to devise ways and means of getting
votes. For the Constitutionalists, Gouverneur Morris was on the ground
from New York;[1216] Robert Morris and probably James Wilson, both from
Philadelphia, had been in Virginia at the time of the elections and the
former remained for the Convention.[1217] During the second week the
Philadelphia financier writes Gates from Richmond, lamenting "the
depredations on my purse," but "inclined to think the Constitution will
be adopted by Virginia."[1218]

For the opposition, Oswald, publisher of the "Independent Gazetteer,"
came on from Philadelphia and arrived in Richmond at the close of the
first week's debate. He at once went into secret conference with Henry,
Mason, and the other Anti-Constitutionalist leaders. Madison reports to
Hamilton that "Oswald of Phil^a came here on Saturday; and he has closet
interviews with the leaders of the opposition."[1219] By the same mail
Grayson advises the general Anti-Constitutionalist headquarters in New
York that he is "sorry ... that our affairs in the convention are
suspended by a hair." Randolph's conduct "has not injured us," writes
Grayson, thus proving how poorly the Anti-Constitutionalists estimated
the real situation. But they were practical enough to know that "there
are seven or eight dubious characters whose opinions are not known" and
upon whose decisions the fate of the Constitution "will ultimately
depend." Grayson cautions Lamb not to let this get into the
newspapers.[1220]

Just what was devised and decided by the leaders of both sides in these
behind-the-doors meetings and what methods were used outside the
Convention hall to influence votes, there is no means of learning
exactly; though "the opposition" committee seems to have been occupied
chiefly in drawing amendments.[1221] But the frequent references,
particularly of the Constitutionalist speakers on the floor, to improper
conduct of their adversaries "out of doors" show that both sides were
using every means known to the politics of the day to secure support. In
the debate itself Henry certainly was making headway.[1222]

On Monday, Henry and Mason made a dramatic entrance into the Convention
hall. Walking arm in arm from their quarters in "The Swan,"[1223] they
stopped on the steps at the doors of the New Academy and conferred
earnestly for some minutes; so great was the throng that the two
Anti-Constitutionalist chieftains made their way to their seats with
great difficulty.[1224] When Henry rose to go on with his speech, the
plan decided on during Sunday quickly was revealed. The great prize for
which both sides now were fighting was the votes from Kentucky.[1225]
Henry held up before them the near forfeiture to the Spanish of our
right to navigate the Mississippi.[1226] This, he said, was the work of
seven Northern States; but under the Confederation they had been
thwarted in their fell purpose by six Southern States; and the
Mississippi still remained our own. But if the Constitution was adopted,
what would happen? The Senate would be controlled by those same Northern
States that had nearly succeeded in surrendering the great waterway and
the West and South would surely be deprived of that invaluable
commercial outlet. He asked the members of Congress who were in the
Convention to tell the facts about the Mississippi business. Jefferson,
he avowed, had counseled Virginia to "reject this government."[1227]

Henry answered the Constitutionalists' prophecy of foreign war,
ridiculed danger from the Indians, proved that the Constitution would
not pay Virginia's debts; and, in characteristic fashion, ranged at
large over the field. The Constitution, he asserted, would "operate like
an ambuscade ... destroy the state governments ... swallow the liberties
of the people without" warning. "How are our debts to be discharged
unless taxes are increased?" asked he; and demonstrated that under the
Constitution taxes surely would be made heavier. Time and again he
warned the Convention against the loss of liberty: "When the deprivation
of our liberty was attempted, what did ... the genius of Virginia tell
us? '_Sell all and purchase liberty!_'... Republican maxims,... and the
genius of Virginia landed you safe on the shore of freedom."

Once more he praised the British form of government--an oversight which
a hawk-eyed young member of the Convention, John Marshall, was soon to
use against him. Henry painted in darkest colors the secrecy of the
Federal Convention. "_Look at us--hear our transactions!_--if this had
been the language of the Federal Convention," there would have been no
Constitution, he asserted, and with entire accuracy. Yet, the
Constitution itself authorized Congress to keep its proceedings as
secret as those of the Constitution's makers had been kept: "The
transactions of Congress," said Henry, "may be concealed a century from
the public."[1228]

Seizing Madison's description of the new Government as partly National
and partly Federal, Henry brought to bear all his power of satire. He
was "amused" at Madison's "treatise of political anatomy.... In the
brain it is national; the stamina are federal; some limbs are federal,
others national." Absurd! The truth was, said Henry, that the
Constitution provided for "a great consolidation of government." Why not
abolish Virginia's Legislature and be done with it? This National
Government would do what it liked with Virginia.

As to the plan of ratifying first and amending afterwards, Henry
declared himself "at a loss what to say. You agree to bind yourselves
hand and foot--for the sake of what? Of being unbound. You go into a
dungeon--for what? To get out.... My anxiety and fears are great lest
America by the adoption of this system [the Constitution], should be
cast into a fathomless bottom."

Tradition has it that during this speech Henry, having frozen his
hearers' blood by a terrific description of lost "liberty," with one of
his sudden turns set both Convention and spectators into roars of
laughter by remarking with a grimace, and as an aside, "why, _they'll
free your niggers_."[1229] And then, with one of those lightning changes
of genius, which Henry alone could make, he solemnly exclaimed, "I look
on that paper [the Constitution] as the most fatal plan that could
possibly be conceived to enslave a free people."[1230]

Lee, in reply, spoke of the lobbying going on outside the Convention.
"Much is said by gentlemen out of doors," exclaimed Lee; "they ought to
urge all their objections here." He taunted Henry, who had praised the
militia, with not having been himself a soldier. "I saw what the
honorable gentleman did not see," cried Lee, "our men fight with the
troops of that King whom he so much admires."[1231]

When the hot-blooded young soldier had finished his aggressive speech,
Randolph could no longer restrain himself. Henry's bold challenge of
Randolph's change of front had cut that proud and sensitive nature to
the heart. "I disdain," thundered he, "his aspersions and his
insinuations." They were "warranted by no principle of parliamentary
decency, nor compatible with the least shadow of friendship; and if our
friendship must fall, _let it fall, like Lucifer, never to rise again_!"
It was not to answer Henry that he spoke, snarled Randolph, "but to
satisfy this respectable audience." Randolph then explained his conduct,
reading part of the letter[1232] that had caused all the trouble,
and dramatically throwing the letter on the clerk's table, cried
"that it might lie there for _the inspection of the curious and
malicious_."[1233] Randolph spoke for the remainder of the day and
consumed most of the next forenoon.[1234]

No soldier had yet spoken for the Anti-Constitutionalists; and it
perhaps was Lee's fling at Henry that now called a Revolutionary officer
to his feet against the Constitution. A tall, stiff, raw-boned young man
of thirty years arose. Poorly educated, slow in his mental
processes,[1235] James Monroe made a long, dull, and cloudy speech,
finally declaring of the Constitution, "I think it a dangerous
government"; and asking "why ... this haste--this wild precipitation?"
Long as Monroe's speech was, he reminded the Convention that he had "not
yet said all that I wish upon the subject" and that he would return to
the charge later on.[1236]

Monroe did not help or hurt either side except, perhaps, by showing the
members that all the Revolutionary veterans were not for the
Constitution. Neither members nor spectators paid much attention to him,
though this was no reflection on Monroe, for the Convention did not
listen with patience to many speakers except Henry. When Henry spoke,
every member was in his seat and the galleries were packed. But only the
most picturesque of the other speakers could hold the audience for
longer than half an hour; generally members walked about and the
spectators were absent except when Henry took the floor.[1237]

As usual, the Constitutionalists were ready with their counter-stroke.
Wythe in the chair recognized a tall, ungainly young man of thirty-two.
He was badly dressed in a loose, summer costume, and his blazing black
eyes and unkempt raven hair made him look more like a poet or an artist
than a lawyer or statesman.[1238] He had bought a new coat the day the
Convention met; but it was a most inexpensive addition to his raiment,
for it cost but one pound, Virginia currency, then greatly
depreciated.[1239] He probably was the best liked of all the members of
the Convention. Sociable to extreme good-fellowship, "his habits," says
Grigsby, "were convivial almost to excess";[1240] and it is more than
likely that, considering the times, these habits in his intimate social
intercourse with his fellow members helped to get more votes than his
arguments on the floor, of which he now was to make the first.[1241] His
four years' record as a soldier was as bright and clean as that of any
man from any State who had fought under Washington.

So when John Marshall began to speak, he was listened to with the ears
of affection; and any point the opposition had made by the fact that
Monroe the soldier had spoken against the Constitution was turned by
Marshall's appearance even before he had uttered a word. The young
lawyer was also accounted an "orator" at this time,[1242] a fact which
added to the interest of his fellow members in his speech.

The question, Marshall said, was "whether democracy or despotism be most
eligible."[1243] He was sure that the framers and supporters of the
Constitution "intend the establishment and security of the former"; they
are "firm friends of the liberty and the rights of mankind." That was
why they were for the Constitution. "We, sir, idolize democracy." The
Constitution was, said he, the "best means of protecting liberty." The
opposition had praised monarchy, but, deftly avowed Marshall, "We prefer
this system to any monarchy"; for it provides for "a well regulated
democracy."

He agreed with Henry that maxims should be observed; they were
especially "essential to a democracy." But, "what are the ... maxims of
democracy?... A strict observance of justice and public faith, and a
steady adherence to virtue. These, Sir, are the principles of a good
government,"[1244] declared the young Richmond Constitutionalist.

"No mischief, no misfortune, ought to deter us from a strict observance
of justice and public faith," cried Marshall. "Would to Heaven," he
exclaimed, "that these principles had been observed under the present
government [the Confederation]." He was thinking now of his experience
in the Legislature and appealing to the honesty of the Convention. If
the principles of justice and good faith had been observed, continued
he, "the friends of liberty would not be so willing now to part with it
[the Confederation]."

Could Virginians themselves boast that their own Government was based on
justice? "Can we pretend to the enjoyment of political freedom or
security, when we are told that a man has been, by an act of Assembly,
struck out of existence without a trial by jury, without examination,
without being confronted with his accusers and witnesses, without the
benefits of the law of the land?"[1245] Skillfully he turned against
Henry the latter's excuse for the execution of Philips, and dramatically
asked: "Where is our safety, when we are told that this act was
justifiable because the person was not a Socrates?... Shall it be a
maxim that a man shall be deprived of his life without the benefit of
the law?"

As to the navigation of the Mississippi, he asked: "How shall we retain
it? By retaining that weak government which has hitherto kept it from
us?" No, exclaimed Marshall, but by a Government with "the power of
retaining it." Such a Government, he pointed out, was that proposed in
the Constitution. Here again the Constitutionalist managers displayed
their skill. Marshall was the best man they could have chosen to appeal
to the Kentucky members on the Mississippi question. His father, mother,
and his family were now living in Kentucky, and his relative, Humphrey
Marshall, was a member of the Convention from that district.[1246]
Marshall himself was the legislative agent of the District of Kentucky
in Richmond. The development of the West became a vital purpose with
John Marshall, strengthening with the years; and this was a real force
in the growth of his views on Nationality.[1247]

Henry's own argument, that amendments could not be had after adoption,
proved, said Marshall, that they could not be had before. In all the
States, particularly in Virginia, there were, he charged, "many who are
decided enemies of the Union." These were inspired by "local interests,"
their object being "disunion." They would not propose amendments that
were similar or that all could agree upon. When the Federal Convention
met, said Marshall, "we had no idea then of any particular system. The
formation of the most perfect plan was our object and wish"; and, "it
was imagined" that the States would with pleasure accept that
Convention's work. But "consider the violence of opinions, the
prejudices and animosities which have been since imbibed"; and how
greatly they "operate against mutual concessions."

Marshall reiterated that what the Constitutionalists were fighting for
was "a well-regulated democracy." Could the people themselves make
treaties, enact laws, or administer the Government? Of course not. They
must do such things through agents. And, inquired he, how could these
agents act for the people if they did not have power to do so? That the
people's agents might abuse power was no argument against giving it, for
"the power of doing good is inseparable from that of doing some evil."
If power were not given because it might be misused, "you can have no
government." Thus Marshall stated that principle which he was to
magnify from the Supreme Bench years later.

"Happy that country," exclaimed the young orator, "which can avail
itself of the misfortunes of others ... without fatal experience!"
Marshall cited Holland. The woes of that country were caused, said he,
by "the want of proper powers in the government, the consequent deranged
and relaxed administration, the violence of contending parties"--in
short, by such a government, or rather absence of government, as America
then had under the Confederation. If Holland had had such a government
as the Constitution proposed, she would not be in her present sorry
plight. Marshall was amused at Henry's "high-colored eulogium on such a
government."

There was no analogy, argued he, between "the British government and the
colonies, and the relation between Congress and the states. We _were
not_ represented in Parliament. Here [under the Constitution] we are
represented." So the arguments against British taxation "do not hold
against the exercise of taxation by Congress." The power of taxation by
Congress to which Henry objected was "essentially necessary; for without
it there will be no efficiency in the government." That requisitions on
the States could not be depended on had been demonstrated by experience,
he declared; the power of direct taxation was, therefore, necessary to
the very existence of the National Government.

"The possibility of its being abused is urged as an argument against
its expediency"; but, said Marshall, such arguments would prevent all
government and result in anarchy. "All delegated powers are liable to be
abused." The question was, whether the taxing power was "necessary to
perform the objects of the Constitution?... What are the objects of
national government? To protect the United States, and to promote the
general welfare. Protection, in time of war, is one of its principal
objects. Until mankind shall cease to have ambition and avarice, wars
will arise."

Experience had shown, said Marshall, that one State could not protect
the people or promote general welfare. "By the national government only"
could these things be done; "shall we refuse to give it power to do
them?" He scorned the assertion "that we need not be afraid of war. Look
at history," he exclaimed, "look at the great volume of human nature.
They will foretell you that a defenseless country cannot be secure. The
nature of men forbids us to conclude that we are in no danger from war.
The passions of men stimulate them to avail themselves of the weakness
of others. The powers of Europe are jealous of us. It is our interest to
watch their conduct and guard against them. They must be pleased with
our disunion. If we invite them by our weakness to attack us, will they
not do it? If we add debility to our present situation, a partition of
America may take place."

The power of National taxation, therefore, was necessary, Marshall
asserted. "There must be men and money to protect us. How are armies to
be raised? Must we not have money for that purpose?" If so, "it is,
then, necessary to give the government that power in time of peace,
which the necessity of war will render indispensable, or else we shall
be attacked unprepared." History, human nature, and "our own particular
experience, will confirm this truth." If danger should come upon us
without power to meet it, we might resort to a dictatorship; we once
were on the point of doing that very thing, said he--and even Henry and
Mason did not question this appeal of Marshall to the common knowledge
of all members of the Convention.

"Were those who are now friends to this Constitution less active in the
defense of liberty, on that trying occasion, than those who oppose it?"
scathingly asked Marshall. "We may now ... frame a plan that will enable
us to repel attacks, and render a recurrence to dangerous expedients
unnecessary. If we be prepared to defend ourselves, there will be little
inducement to attack us. But if we defer giving the necessary power to
the general government till the moment of danger arrives, we shall give
it then, and with an _unsparing hand_."

It was not true, asserted Marshall, that the Confederation carried us
through the Revolution; "had not the enthusiasm of liberty inspired us
with unanimity, that system would never have carried us through it." The
war would have been won much sooner "had that government been possessed
of due energy." The weakness of the Confederation and the conduct of the
States prolonged the war. Only "the extreme readiness of the people to
make their utmost exertions to ward off solely the pressing danger,
supplied the place of requisitions." But when this danger was over, the
requisition plan was no longer effective. "A bare sense of duty," said
he, "is too feeble to induce men to comply with obligations."

It was plain, then, Marshall pointed out, that "the government must have
the sinews of war some other way." That way was by direct taxation which
would supply "the necessities of government ... in a peaceable manner";
whereas "requisitions cannot be rendered efficient without a civil war."

What good would it do for Congress merely to remonstrate with the
States, as Henry had proposed, if we were at war with foreign enemies?
There was no danger that Congress, under the Constitution, would not lay
taxes justly, asserted Marshall; for if members of Congress laid unjust
taxes, the people would not reëlect them. Under the Constitution, they
were chosen by the same voters who elected members of the State
Legislature. These voters, said he, "have nothing to direct them in the
choice but their own good." Men thus elected would not abuse their power
because that would "militate against their own interest.... To procure
their reelection, it will be necessary for them to confer with the
people at large, and convince them that the taxes laid are for their own
good."

Henry had asked whether the adoption of the Constitution "would pay our
debts." "It will compel the states to pay their quotas," answered
Marshall. "Without this, Virginia will be unable to pay. Unless all the
states pay, she cannot.... Economy and industry are essential to our
happiness"; but the Confederation "takes away the incitements to
industry, by rendering property insecure and unprotected." The
Constitution, on the contrary, "will promote and encourage industry."

The statement of the Anti-Constitutionalists that the extent of the
country was too great for a strong National Government was untrue,
argued Marshall. Also, said he, this objection was from writers who
criticized those governments "where representation did not exist." But,
under the Constitution, representation would exist.

Answering Henry's objection, that there were no effective checks in the
Constitution, Marshall inquired, "What has become of his enthusiastic
eulogium on the American spirit?" There, declared Marshall, was the real
check and control. "In this country, there is no exclusive personal
stock of interest. The interest of the community is blended and
inseparably connected with that of the individual. When he promotes his
own, he promotes that of the community. When we consult the common good,
we consult our own." In such considerations were found the greatest
security from an improper exercise of power.

"Is not liberty secure with us, where the people hold all powers
in their own hands, and delegate them cautiously, for short
periods, to their servants, who are accountable for the smallest
mal-administration?... We are threatened with the loss of our liberties
by the possible abuse of power, notwithstanding the maxim that those who
give may take away. It is the people that give power, and can take it
back. What shall restrain them? They are the masters who give it, and of
whom their servants hold it."

Returning to the subject of amendments, "what," asked Marshall, "shall
restrain you from amending it, if, in trying it, amendments shall be
found necessary.... When experience shall show us any inconvenience, we
can then correct it.... If it be necessary to change government, let us
change that government which has been found to be defective." The
Constitution as it stood filled the great objects which everybody
desired--"union, safety against foreign enemies, and protection against
faction [party]--against what has been the destruction of all
republics."

He turned Henry's unhappy praise of the British Constitution into a
weapon of deadly attack upon the opposition. The proposed Constitution,
said Marshall, was far better than the British. "I ask you if your House
of Representatives would be better than it is, if a hundredth part of
the people were to elect a majority of them? If your senators were for
life, would they be more agreeable to you? If your President were not
accountable to you for his conduct,--if it were a constitutional maxim,
that he could do no wrong,--would you be safer than you are now? If you
can answer, Yes, to these questions, then adopt the British
constitution. If not, then, good as that government may be, this
[Constitution] is better."

Referring to "the confederacies of ancient and modern times" he said
that "they warn us to shun their calamities, and place in our government
those necessary powers, the want of which destroyed them." The ocean
does not protect us from war; "Sir," exclaimed Marshall, "the sea makes
them neighbors to us.... What dangers may we not apprehend to our
commerce! Does not our naval weakness invite an attack on our commerce?"
Henry had said "that our present exigencies are greater than they will
ever be again." But, asked he, "Who can penetrate into futurity?"

Henry's objection that the National Government, under the Constitution,
would "call forth the virtue and talents of America," to the
disadvantage of the States, was, Marshall said, the best guarantee that
the National Government would be wisely conducted. "Will our most
virtuous and able citizens wantonly attempt to destroy the liberty of
the people? Will the most virtuous act the most wickedly?" On the
contrary, "the virtue and talents of the members of the general
government will tend to the security instead of the destruction of our
liberty.... The power of direct taxation is essential to the existence
of the general government"; if not, the Constitution was unnecessary;
"for it imports not what system we have, unless it have the power of
protecting us in time of war."[1248]

This address to the Virginia Convention is of historic interest as John
Marshall's first recorded utterance on the Constitution of which he was
to become the greatest interpreter. Also, it is the first report of
Marshall's debating. The speech is not, solely on its merits,
remarkable. It does not equal the logic of Madison, the eloquence of
Randolph or Lee, or the brilliancy of Corbin. It lacks that close
sequence of reasoning which was Marshall's peculiar excellence. In
provoking fashion he breaks from one subject when it has been only
partly discussed and later returns to it. It is rhetorical also and
gives free rein to what was then styled "Marshall's eloquence."

The warp and woof of Marshall's address was woven from his military
experience; he forged iron arguments from the materials of his own
soldier life. Two thirds of his remarks were about the necessity of
providing against war. But the speech is notable as showing, in their
infancy, those views of government which, in the shaggy strength of
their maturity, were to be so influential on American destiny.[1249] It
also measures the growth of those ideas of government which the camp,
the march, and the battlefield had planted in his mind and heart. The
practical and immediate effect of the speech, which was what the
Constitutionalists, and perhaps Marshall himself, cared most about, was
to strengthen the soldier vote for the Constitution and to cause the
Kentucky members to suspend judgment on the Mississippi question.

[Illustration: _John Marshall_

_From a painting by Martin in the Robe Room of the U. S. Supreme
Court._]

For the Anti-Constitutionalists there now arose a big-statured old man
"elegantly arrayed in a rich suit of blue and buff, a long queue tied
with a black ribbon dangling from his full locks of snow, and his
long black boots encroaching on his knees."[1250] His ancestors had been
Virginians even before the infant colony had a House of Burgesses. When
Benjamin Harrison now spoke he represented the aristocracy of the Old
Dominion, and he launched all his influence against the Constitution.
For some reason he was laboring "under high excitement," and was almost
inaudible. He lauded the character of the Virginia Legislature, of which
he had been a member. The Constitution, insisted Harrison, "would
operate an infringement of the rights and liberties of the
people."[1251]

George Nicholas answered at length and with characteristic ability and
learning.[1252] But his speech was quite unnecessary, for what Harrison
had said amounted to nothing. On the morning of the ninth day of the
Convention Madison continued his masterful argument, two sections of
which he already had delivered.[1253] He went out of his way to praise
Marshall, who, said Madison, had "entered into the subject with a great
deal of ability."[1254]

Mason, replying on taxation, said that under the Constitution there were
"some land holders in this state who will have to pay twenty times as
much [taxes] as will be paid for all the land on which Philadelphia
stands." A National excise tax, he declared, "will carry the exciseman
to every farmer's house, who distills a little brandy where he may
search and ransack as he pleases." And what men, asked Mason, would be
in Congress from Virginia? Most of them would be "chosen ... from the
higher order of the people--from the great, the wealthy--the
_well-born_--the _well-born_, Mr. Chairman, that aristocratic idol--that
flattering idea--that _exotic_ plant which has been lately imported from
the ports of Great Britain, and planted in the luxurious soil of this
country."

It is significant to find the "well-born," wealthy, learned, and
cultivated Mason taking this tone. It shows that the common people's
dislike of a National Government was so intense that even George Mason
pandered to it. It was the fears, prejudices, and passions of the
multitude upon which the enemies of the Constitution chiefly depended;
and when Mason stooped to appeal to them, the sense of class distinction
must have been extreme. His statement also reveals the economic line of
cleavage between the friends and foes of the Constitution.

It was in this speech that Mason made his scathing "cat and Tory"
comparison. He knew those who were for the Constitution, "their
connections, their conduct, their political principles, and a number of
other circumstances. There are a great many wise and good men among
them"; but when he looked around and observed "who are the warmest and
most zealous friends to this new government," it made him "think of the
story of the cat transformed to a fine lady: forgetting her
transformation and happening to see a rat, she could not restrain
herself, but sprang upon it out of the chair."[1255]

Mason denounced Randolph for the latter's apostasy. "I know," said
Mason, "that he once saw as great danger in it as I do. What has
happened since this to alter his opinion?" Of course, the Confederation
was defective and reform needed; but the Constitution was no reform.
Without previous amendments, "we never can accede to it. Our duty to God
and to our posterity forbids it,"[1256] declared the venerable author of
Virginia's Bill of Rights and the Constitution of the State.

Henry Lee answered with fire and spirit, first rebuking "the irregular
and disorderly manner" in which the opposition had carried on the
debate. As to the cat story, Mason ought to know "that ridicule is not
the test of truth. Does he imagine that he who can raise the loudest
laugh is the soundest reasoner?" And Mason's "insinuations" about the
"well-born" being elected to Congress were "unwarrantable." He hoped
that "we shall hear no more of such groundless aspersions." Lee's speech
is valuable only as showing the rising spirit of anger which was
beginning to appear even in Virginia's well-conducted, parliamentary,
and courteous debate.[1257]

The Anti-Constitutionalists were now bringing all their guns into
action. The second Revolutionary soldier to speak for the opposition now
arose. William Grayson was almost as attractive a military figure as
Henry Lee himself. He had been educated at Oxford, had studied law in
the Inner Temple; and his style of speech was the polished result of
practice in the English political clubs, in Congress, and at the
bar.[1258] There were few men in America with more richly stored or
better trained minds. He was a precise Latinist and a caustic wit. When,
during the debate, some of the Constitutionalist speakers used Latin
phrases with a wrong pronunciation, Grayson, _sotto voce_, would correct
them. Once he remarked, loud enough to be heard by the other members
whom he set roaring with laughter, that he was not surprised that men
who were about to vote away the liberties of a living people should take
such liberties with a dead language.

Grayson now brought into action the heaviest battery the
Anti-Constitutionalists had in reserve. He did not blame Virginia's
delegates to the Federal Convention, said Grayson suavely. It was
unfortunate "that they did not do more for the general good of
America"; but "I do not criminate or suspect the principles on which
they acted." Of course, the Confederation had defects; but these were
"inseparable from the nature of such [Republican] governments." The
Constitutionalists had conjured up "phantoms and ideal dangers to lead
us into measures which will ... be the ruin of our country." He argued
that we were in no danger from our default in paying foreign loans; for
most European nations were friendly. "Loans from nations are not like
loans from private men. Nations lend money ... to one another from views
of national interest. France was willing to pluck the fairest feather
out of the British crown. This was her hope in aiding us"--a truth
evident to every man in the Convention. Such loans were habitually
delayed,--for instance, "the money which the Dutch borrowed of Henry IV
is not yet paid"; these same Dutch "passed Queen Elizabeth's loan at a
very considerable discount," and they "made their own terms with that
contemptible monarch," James I.

The people had no idea, asserted Grayson, that the Federal Convention
would do more than to give the National Government power to levy a five
per cent tariff, but since then "horrors have been greatly magnified."
He ridiculed Randolph's prophecy of war and calamity. According to
Randolph, "we shall be ruined and disunited forever, unless we adopt
this Constitution. Pennsylvania and Maryland are to fall upon us from
the north, like the Goths and Vandals of old; the Algerines, whose
flat-sided vessels never came farther than Madeira, are to fill the
Chesapeake with mighty fleets, and to attack us on our front; the
Indians are to invade us with numerous armies on our rear, in order to
convert our cleared lands into hunting-grounds; and the Carolinians,
from the South (mounted on alligators, I presume), are to come and
destroy our cornfields, and eat up our little children! These,
sir, are the mighty dangers which await us if we reject [the
Constitution]--dangers which are merely imaginary, and ludicrous
in the extreme!"

At bottom, thought Grayson, the controversy was between two
opinions--"the one that mankind can only be governed by force; the other
that they are capable" of governing themselves. Under the second theory,
which Grayson favored, all that was necessary was to "give congress the
regulation of commerce" and to "infuse new strength and spirit into the
state governments."

This, he remarked, was the proper course to pursue and to maintain "till
the American character be marked with some certain features. We are yet
too young to know what we are fit for." If this was not to be done and
we must have a government by force, then Grayson "would have a President
for life, choosing his successor at the same time; a Senate for life,
with the powers of the House of Lords; and a triennial House of
Representatives, with the powers of the House of Commons in
England."[1259] Consider the Judiciary. Suppose a man seized at the same
time under processes from Federal and State Courts: "Would they divide
the man in two, as Solomon directed the child to be divided who was
claimed by two women?"

Evidently Grayson was making a strong impression as the day grew to a
close, for Monroe, seconded by Henry, moved that the Convention adjourn
that Grayson might go on next day; and Madison, plainly nervous,
"insisted on going through the business regularly, according to the
resolution of the house." Grayson consumed most of the next forenoon,
displaying great learning, but sometimes drawing the most grotesque
conclusions. For example, he said that Congress might grant such
privileges that "the whole commerce of the United States may be
exclusively carried on by merchants residing within the seat of
government [now the District of Columbia] and those places of arms which
may be purchased of the state legislature." The Constitution did not
give equality of representation; for "the members of Delaware will
assist in laying a tax on our slaves, of which they will pay no part
whatever." In general, Grayson's conclusion was that "we have asked for
bread and they have given us a stone."[1260]

Pendleton answered. Henry's treatment of Randolph's unhappy reference to
the people as a "herd" seems to have had some effect; for Pendleton
regretted its use and tried to explain it away. Henry and he differed
"at the threshold" on government. "I think government necessary to
protect liberty.... Licentiousness" was "the natural offspring of
liberty"; and "therefore, all free governments should endeavor to
suppress it, or else it will ultimately overthrow that liberty of which
it is the result." Henry "professes himself an advocate for the middling
and lower classes of men, I profess to be a friend to the equal liberty
of all men, from the palace to the cottage."

The appeal to class hatred, said Pendleton, had been made by the
opposition exclusively; the Constitutionalists knew no distinction among
men except that of good and bad men. Why did the opposition make "the
distinction of _well-born_ from others?... Whether a man be great or
small, he is equally dear to me." He wished "for a regular government in
order to secure and protect ... honest citizens ... the industrious
farmer and planter." The purpose of the proposed National Government was
to cherish and protect industry and property. Pendleton spoke at great
length, but frequently his voice was so feeble that he could not be
understood or reported.[1261]

Madison followed with the fourth section of what might properly be
called his treatise on government. Henry replied, striking again the
master chord of the people's fears--that of a National Government as
something alien. "The tyranny of Philadelphia may be like the tyranny of
George III." That the Constitution must be amended "re-echoed from every
part of the continent"; but that could not be done "if we ratify
unconditionally." Henry remade his old points with his consummate art.

He mentioned a new subject, however, of such high practical importance
that it is astonishing that he had not advanced it at the beginning and
driven it home persistently. "There are," he said, "thousands and
thousands of contracts, whereof equity forbids an exact literal
performance.... Pass that government [the Constitution] and you will be
bound hand and foot.... An immense quantity of depreciated Continental
paper money ... is in the hands of individuals to this day. The holders
of this money may call for the nominal value, if this government be
adopted. This State may be compelled to pay her proportion of that
currency, pound for pound. Pass this government and you will be carried
to the federal court ... and you will be compelled to pay, shilling for
shilling."

Returning to this point later on, Henry said: "Some of the states owe a
great deal on account of paper money; others very little. Some of the
Northern States have collected and barrelled up paper money. Virginia
has sent thither her cash long ago. There is little or none of the
Continental paper money retained in this State. Is it not their business
to appreciate this money? Yes, and it will be your business to prevent
it. But there will be a majority [in Congress] against you and you will
be obliged to pay your share of this money, in its nominal value."[1262]

Referring to Pendleton's assertion that the State Court had declared
void legislative acts which violated the State Constitution, Henry
exclaimed: "Yes, sir, our judges opposed the acts of the legislature.
We have this landmark to guide us. They had the fortitude to declare
that they were the judiciary and would oppose unconstitutional acts. Are
you sure your federal judiciary will act thus? Is that judiciary as well
constructed, and as independent of the other branches, as our state
judiciary? Where are your landmarks in this government? I will be bold
to say you cannot find any in it. I take it as the highest encomium on
this country [Virginia] that the acts of the legislature, if
unconstitutional, are liable to be opposed by the judiciary."[1263]

As usual, Henry ended with a fearsome picture and prophecy, this time of
the danger to and destruction of Southern interests at the hands of the
Northern majority. This, said he, "is a picture so horrid, so wretched,
so dreadful, that I need no longer dwell upon it"; and he "dreaded the
most iniquitous speculation and stock-jobbing, from the operation of
such a system" as the Constitution provided.[1264] Madison replied--the
first spontaneous part he had taken in the debate.[1265]

The next morning the opposition centered their fire on the Mississippi
question. Henry again demanded that the members of the Convention who
had been in Congress should tell what had been done.[1266] The members
of Congress--Lee, Monroe, Grayson, and Madison--then gave their
versions of the Jay-Gardoqui transaction.[1267]

The Constitutionalists rightly felt that "the whole scene has been
conjured by Henry to affect the ruin of the new Constitution,"[1268] and
that seasoned gladiator now confirmed their fears. He astutely threw the
blame on Madison and answered the charge of the Constitutionalists that
"we [the opposition] are scuffling for Kentucky votes and attending to
local circumstances." With all of his address and power, Henry bore down
upon the Mississippi question. Thus he appealed for Kentucky votes:
"Shall we appear to care less for their interests than for that of
distant people [the Spaniards]?"

At Henry's word a vision rose before all eyes of the great American
valley sustaining "a mighty population," farms, villages, towns, cities,
colleges, churches, happiness, prosperity; and "the Mississippi covered
with ships laden with foreign and domestic wealth"--a vision of a
splendid West "the strength, the pride, and the flower of the
Confederacy." And then quickly succeeded on the screen the picture of
the deserted settlers, the West a wilderness, the Father of Waters
flowing idly to the sea, unused by commerce, unadorned by the argosies
of trade. Such, said he, would be the Mississippi under the Constitution
"controlled by those who had no interest in its welfare."[1269]

At last the Constitutionalists were stunned. For a while no one spoke.
Pendleton, "his right hand grasping his crutch, sat silent and
amazed."[1270] Nicholas, the dauntless, was first to recover himself,
and repeated Marshall's argument on the Mississippi question. Evidently
the opposition had lobbied effectively with the Kentucky members on that
sore point; for, exclaimed Nicholas, "we have been alarmed about the
loss of the Mississippi, in and _out_ of doors."[1271]

The Constitutionalists strove mightily to break the force of Henry's
_coup_ on the Kentucky delegates. He had "seen so many attempts made,"
exclaimed Randolph, "and so many wrong inducements offered to influence
the delegation from Kentucky," that he must speak his mind about
it.[1272] Corbin called the Mississippi trick "reprehensible." And well
might the Constitutionalists tremble; for in spite of all they could do,
ten out of fourteen of the Kentucky delegates voted against ratifying
the Constitution.

That night Pendleton fell ill and John Tyler, "one of the staunchest
opponents of the new Constitution," was elected Vice-President.[1273]
The Mississippi question was dropped for the moment; the
Constitutionalists rallied and carried Corbin's motion to debate the new
Government clause by clause in accordance with the original resolution.
Several sections of the first article were read and debated, Henry,
Mason, and Grayson for the opposition; Madison bearing the burden of the
debate for the Constitutionalists.

The rich man and the poor, the State Government a thing of the "people"
and the National Government something apart from the "people," were
woven throughout the Anti-Constitutionalists' assaults. "Where,"
exclaimed Henry, "are the purse and the sword of Virginia? They must go
to Congress. What has become of your country? The Virginian government
is but a name.... We are to be consolidated."[1274]

The second week's debate closed with the advantage on the side of the
opposition. Gouverneur Morris, the New York Constitutionalist, who,
still on the ground, was watching the fight in Richmond and undoubtedly
advising the Virginia Constitutionalists, reported to Hamilton in New
York that "matters are not going so well in this State as the Friends of
America could wish." The Anti-Constitutionalists had been making
headway, not only through Henry's tremendous oratory, but also by other
means; and the Constitutionalists acknowledged that their own arguments
in debate were having little or no effect.

"If, indeed, the Debates in Convention were alone attended to," wrote
Gouverneur Morris, "a contrary Inference would be drawn for altho M^r.
Henry is most warm and powerful in Declamation being perfectly Master of
'Action Utterrance and Power of Speech to stir Men's Blood' yet the
Weight of Argument is so strong on the Side of Truth as wholly to
destroy even on weak Minds the Effects of his Eloquence. But there are
as you well know certain dark Modes of operating on the Minds of Members
which like contagious Diseases are only known by their Effects on the
Frame and unfortunately our moral like our phisical Doctors are often
mistaken in their Judgment from Diagnostics. Be of good Chear. My
Religion steps in where my Understanding falters and I feel Faith as I
loose Confidence. Things will yet go right but when and how I dare not
predicate. So much for this dull Subject."[1275]

"We have conjectured for some days," Madison advised Hamilton, "that the
policy is to spin out the Session in order to receive overtures from
your [New York's] Convention: or if that cannot be, to weary the members
into a adjournment without taking any decision. It [is] presumed at the
same time that they do not despair of carrying the point of previous
amendments which is preferable game. The parties continue to be nearly
balanced. If we have a majority at all, it does not exceed three or
four. If we lose it Kentucke will be the cause; they are generally if
not unanimously against us."[1276]

On the back of Madison's letter, Henry Lee wrote one of his own to the
New York Constitutionalist chieftain. "We possess as yet," said Lee, "in
defiance of great exertions a majority, but very small indeed. A
correspondence has certainly been opened thro a Mr. O.[swald] of
Philad^a from the Malcontents of B. & N. Y. to us--it has its operation,
but I believe we are still safe, unless the question of adjournment
should be introduced, & love of home may induce some of our friends to
abandon their principles."[1277]

"The business is in the most ticklish state that can be imagined,"
Madison informed Washington; "the majority will certainly be very small
on whatever side it may finally lie; and I dare not encourage much
expectation that it will be on the favorable side. Oswald of Philad^a
has been here with letters for the anti-Federal leaders from N. York and
probably Philad^a. He Staid a very short time here during which he was
occasionally closeted with H----y M--s--n &c."[1278]

On Monday the Anti-Constitutionalists were first in the field. They were
by now displaying improved tactics. Henry opened on the dangers of a
standing army. "If Congress shall say that the general welfare requires
it, they may keep armies continually on foot.... They may billet them on
the people at pleasure." This is "a most dangerous power! Its principles
are despotic."[1279] Madison followed,[1280] and Mason, Corbin, and
Grayson also spoke,[1281] the latter asserting that, under the
Constitution, the States could not "command the militia" unless by
implication.

Here Marshall again took part in the debate.[1282] He asked whether
Grayson was serious in stating that the Constitution left no power in
the States over the militia unless by implication. Under the
Constitution, State and National Governments "each derived its powers
from the people, and each was to act according to the powers given it."
Were "powers not given retained by implication?" asked Marshall. Was
"this power [over the militia] not retained by the states, as they had
not given it away?"

It is true, he admitted, that "Congress may call forth the militia" for
National purposes--"as to suppress insurrections and repel invasions";
but the power given the States by the people "is not taken away, for the
Constitution does not say so." The power of Congress over the ten miles
square where the National Capital was to be located is "exclusive ...
because it is expressed [in the Constitution] to be exclusive." Marshall
contended that any power given Congress which before was in the States
remained in both unless the Constitution said otherwise or unless there
was incompatibility in its exercise. So the States would have the same
control over the militia as formerly. "When invaded or in imminent
danger they [the States] can engage in war."

Grayson had said, declared Marshall, that if the National Government
disciplined the militia, "they will form an aristocratic government,
unsafe and unfit to be trusted." Grayson interrupted Marshall in an
unsuccessful attempt to squirm out of the position in which the latter
had placed him. He had only said that in its military features the
Constitution "was so constructed as to form a great aristocratic body."

Marshall retorted that "as the government was drawn from the people, the
feelings and interests of the people would be attended to"; and,
therefore, there would be no military aristocracy. "When the government
is drawn from the people and depending on the people for its
continuance, oppressive measures will not be attempted," argued
Marshall, "as they will certainly draw on their authors the resentment
of those on whom they depend." No! cried he: "On this government, thus
depending on ourselves for its existence, I will rest my safety."

Again Marshall expressed his military experience and instincts. If war
should come "what government is able to protect you?" he asked. "Will
any state depend on its own exertions?" No! If the National Government
is not given the power "state will fall after state and be a sacrifice
to the want of power in the general government." Uttering the motto of
American Nationalism, which, long years afterward, he declared to have
been the ruling maxim of his entire life, Marshall cried, "_United we
are strong, divided we fall._" If the National militia cannot "draw the
militia of one state to another ... every state must depend upon
itself.... It requires a superintending power, ... to call forth the
resources of all to protect all."

Replying to Grayson's assertion that "a general regulation [of the
militia] may be made to inflict punishments," Marshall asked whether
Grayson imagined that a militia law would be "incapable of being
changed?" Grayson's idea "supposes that men renounce their own
interests." And "if Congress neglect our militia, we can arm them
ourselves. Cannot Virginia import arms ... [and] put them into the hands
of her militia men?" Marshall summed up with the statement that the
States derived no powers from the Constitution "but retained them,
though not acknowledged in any part of it."[1283]

Marshall's speech must have been better than anything indicated in the
stenographer's report; for the resourceful Grayson was moved to answer
it at once[1284] and even Henry felt called upon to reply to it.[1285]
Henry was very fond of Marshall; and this affection of the mature
statesman for the rising young lawyer saved the latter in a furious
political contest ten years afterwards.[1286] The debate was continued
by Madison, Mason, Nicholas, Lee, Pendleton, and finally ended in a
desultory conversation,[1287] but nothing important or notable was said
in this phase of the debate. One statement, however, coming as it did
from Mason, flashes a side-light on the prevailing feeling that the
proposed National Government was something apart from the people. Mason
saw the most frightful dangers from the unlimited power of Congress over
the ten miles square provided for the National Capital.

"This ten miles square," cried Mason, "may set at defiance the laws of
the surrounding states, and may, like the custom of the superstitious
days of our ancestors, become the sanctuary of the blackest crimes. Here
the Federal Courts are to sit.... What sort of a jury shall we have
within the ten miles square?" asked Mason, and himself answered, "The
immediate creatures of the government. What chance will poor men get?...
If an attempt should be made to establish tyranny over the people, here
are ten miles square where the greatest offender may meet protection. If
any of the officers or creatures [of the National Government] should
attempt to oppress the people or should actually perpetrate the blackest
deed, he has nothing to do but to get into the ten miles square."[1288]

The debate then turned upon amending the Constitution by a Bill of
Rights, the Constitutionalists asserting that such an amendment was not
necessary, and the opposition that it was absolutely essential. The
question was "whether rights not given up were reserved?" Henry, as
usual, was vivid. He thought that, without a Bill of Rights, "excisemen
may come in multitudes ... go into your cellars and rooms, and search,
and ransack, and measure, everything you eat, drink, and wear." And the
common law! The Constitution did not guarantee its preservation.
"Congress may introduce the practice of the civil law, in preference to
that of the common law; ... the practice of ... torturing, to extort a
confession of the crime.... We are then lost and undone."[1289]

The slavery question next got attention, Mason, Madison, Tyler, Henry,
and Nicholas continuing the discussion.[1290] Under the first clause of
the tenth section of article one, Henry again brought up the payment of
the Continental debt. "He asked gentlemen who had been high in
authority, whether there were not some state speculations on this
matter. He had been informed that some states had acquired vast
quantities of that money, which they would be able to recover in its
nominal value of the other states." Mason said "that he had been
informed that some states had speculated most enormously in this matter.
Many individuals had speculated so as to make great fortunes on the ruin
of their fellow-citizens." Madison in reply assured the Convention that
the Constitution itself placed the whole subject exactly where it was
under the Confederation; therefore, said he, it is "immaterial who holds
those great quantities of paper money,... or at what value they
acquired it."[1291] To this extent only was the point raised which
became most vital when the National Government was established and under
way.[1292]

Madison's point, said Mason, was good as far as it went; but, under the
Confederation, Congress could discharge the Continental money "at its
depreciated value," which had gone down "to a thousand for one." But
under the Constitution "we must pay it shilling for shilling or at least
at the rate of one for forty"; which would take "the last particle of
our property.... We may be taxed for centuries, to give advantage to a
few particular states in the Union and a number of rapacious
speculators." Henry then turned Madison's point that "the new
Constitution would place us in the same situation with the old"; for
Henry saw "clearly" that "this paper money must be discharged shilling
for shilling."[1293] Then Henry brought up the scarecrow of the British
debts, which had more to do with the opposition to the Constitution in
Virginia[1294] than any other specific subject, excepting, perhaps, the
threatened loss of the Mississippi and the supreme objection that a
National Government would destroy the States and endanger "liberty."

The opposition had now come to the point where they were fighting the
separate provisions of the Constitution one by one. When the first
section of the second article, concerning the Executive Department, was
reached, the opposition felt themselves on safe ground. The Constitution
here sapped the "great fundamental principle of responsibility in
republicanism," according to Mason.[1295] Grayson wanted to know how the
President would be punished if he abused his power. "Will you call him
before the Senate? They are his counsellors and partners in
crime."[1296]

The treaty-making power, the command of the army, the method of electing
the President, the failure of the Constitution to provide for his
rotation in office, all were, to the alarmed Anti-Constitutionalists,
the chains and shackles of certain and inevitable despotism. The simple
fears of the unlettered men who sullenly had fought the Constitution in
the Massachusetts Convention were stated and urged throughout the great
debate in Virginia by some of her ablest and most learned sons. Madison
was at his best in his exposition of the treaty-making power. But if the
debate on the Executive Department had any effect whatever in getting
votes for or against the Constitution, the advantage was with the
enemies of the proposed new Government.

Grayson wrote to Dane: "I think we got a Vote by debating the powers of
the President. This, you will observe, is confidential." But this was
cold comfort, for, he added, "our affairs ... are in the most ticklish
situation. We have got ten out of thirteen of the Kentucke members but
we wanted the whole: & I don't know that we have got one yet of the four
upper counties: this is an important point & which both sides are
contending for by every means in their power. I believe it is absolutely
certain that we have got 80 votes on our side which are inflexible &
that eight persons are fluctuating & undecided."[1297]


FOOTNOTES:

[1216] "I am to acknowledge yours of the 19th of May, which reached me a
few days since." (Gouverneur Morris from Richmond, June 13, 1788, to
Hamilton in New York; Hamilton MSS., Lib. Cong.)

[1217] Robert Morris to Horatio Gates, Richmond, June 12, 1788; MS.,
N.Y. Pub. Lib. "James [Wilson] the Caladonian, Leut. Gen. of the
myrmidons of power, under Robert [Morris] the cofferer, who with his
aid-de-camp, _Gouvero_ [Gouverneur] the cunning man, has taken the field
in Virginia." (_Centinel_, no. 10, Jan. 12, 1788; reprinted in McMaster
and Stone, 631.)

Robert Morris was in Richmond, March 21, 1788. (Morris to _Independent
Gazetteer_ on that date; _ib._, 787, denying the charge that paper had
made against him. See _supra_, chap. X.) He was in Richmond in May and
paid John Marshall four pounds, four shillings as a "retainer." (Account
Book, May 2, 1788.) He had heavy business interests in Virginia; see
Braxton _vs._ Willing, Morris & Co. (4 Call, 288). Marshall was his
lawyer.

[1218] Morris to Gates, June 12, 1788, _supra_. Morris's remark about
depredations on his purse may or may not refer to the work of the
Convention. He was always talking in this vein about his expenses; he
had lost money in his Virginia business ventures; and, having his family
with him, may, for that reason, have found his Southern trip expensive.
My own belief is that no money was used to get votes; for Henry, Mason,
and Grayson surely would have heard of and, if so, denounced such an
attempt.

[1219] Madison to Hamilton, June 9, 1788; Hamilton MSS., Lib. Cong.

[1220] Grayson to Lamb, June 9, 1788; quoted in Leake: _Lamb_, 311.

[1221] Grayson to Lamb, June 9, 1788; quoted in Leake: _Lamb_, 311.

[1222] Grigsby, i, 149-50.

[1223] The new tavern at Richmond--competitor of Formicola's inn.

[1224] Grigsby, i, 151.

[1225] Kentucky had fourteen members. On the final vote, the
Constitution was ratified by a majority of only 10 out of 168 members
present and voting. At the opening of the Convention, Grayson said that
"the district of Kentucke is with us, and if we can get all of the four
Counties, which lye on the Ohio between the Pennsylv^y line and Big
Sandy Creek, the day is our own." (Grayson to Dane, June 4, 1788; Dane
MSS., Lib. Cong.) The Constitutionalists finally succeeded in getting
four of these Kentucky votes.

[1226] The Jay-Gardoqui agreement.

[1227] Jefferson to Donald, Feb. 7, 1788; Jefferson's _Writings_:
Washington, ii, 355; and see Monroe to Jefferson, July 12, 1788;
_Writings_: Hamilton, i, 186-87.

[1228] Elliott, iii, 170-71. The reporter noted that "Mr. Henry in a
very animated manner expatiated on the evil and pernicious tendency of
keeping secret the common proceedings of government." (_Ib._, 170.)

[1229] Grigsby, i, footnote to 157.

[1230] Elliott, iii, 150-76.

[1231] Lee, while pretending to praise the militia, really condemned it
severely; and cited the militia's panic and flight at Guilford
Court-House, which lost the battle to the Americans. "Had the line been
supported that day," said he, "Cornwallis, instead of surrendering at
Yorktown, would have laid down his arms at Guilford." (Elliott, iii,
178.)

[1232] Randolph's letter explaining why he had refused to sign the
Constitution.

[1233] This was the only quarrel of the Convention which threatened
serious results. A duel was narrowly averted. Colonel William Cabell, as
Henry's friend, called on Randolph that night; but matters were arranged
and the tense situation relieved when it was learned, next morning, that
no duel would take place. (Grigsby, i, 162-65.)

[1234] Elliott, iii, 187-207.

[1235] Grigsby, i, 167-68.

[1236] Elliott, iii, 207-22.

[1237] "When any other member spoke, the members of the audience would,
in half an hour, be going out or moving from their seats." (Winston to
Wirt, quoted in Henry, ii, 347.) Henry spoke every day of the twenty-two
days' debate, except five; and often spoke several times a day. (_Ib._,
350.)

[1238] Grigsby, i, 176.

[1239] Marshall's Account Book. The entry is: "[June] 2 Paid for coat
for self 1." Two months earlier Marshall paid "for Nankin for breeches
for self 1.16." (_Ib._, April 1, 1788.) Yet about the same time he spent
one pound, nine shillings at a "barbecue."

[1240] Grigsby, i, 176.

[1241] Marshall had provided for entertaining during the Convention. His
Account Book shows the following entry on May 8, 1788: "Paid McDonald
for wine 20" (pounds); and "bottles 9/" (shillings). This was the
largest quantity of wine Marshall had purchased up to that time.

[1242] Marshall's reputation for "eloquence" grew, as we shall see,
until his monumental work on the Supreme Bench overshadowed his fame as
a public speaker.

[1243] Elliott, iii, 222.

[1244] Marshall's idea was that government should be honest and
efficient; a government by the people, whether good or bad, as a method
of popular self-development and progress did not appeal to him as much
as excellence in government.

[1245] Marshall here referred to the case of Josiah Philips, and fell
into the same error as had Randolph, Henry, and others. (See _supra_,
393, footnote 1.)

[1246] Humphrey Marshall, i, 254. Humphrey Marshall finally voted for
the Constitution, against the wishes of his constituents. (Scott,
135-38.)

[1247] See vol. III of this work.

[1248] See entire speech in Elliott, iii, 223-36.

[1249] Some of the sentences used in this unprepared speech are similar
to those found in the greatest of his opinions as Chief Justice. (See
vol. III of this work.)

[1250] Grigsby, i, 183-85.

[1251] Elliott, iii, 236.

[1252] _Ib._, 236-47.

[1253] _Ib._, 247-62.

[1254] _Ib._, 254.

[1255] This caustic reference was to the members of the Convention who
had been Tories. (Grigsby, i, 193; Elliott, iii, 269; also Rowland, ii,
240.) As we have seen most of the Tories and Revolutionary soldiers were
united for the Constitution. These former enemies were brought together
by a common desire for a strong National Government.

[1256] Elliott, iii, 262-72.

[1257] _Ib._, 272-73.

[1258] Grigsby, i, 194-205. William Grayson was one of the strongest men
in Virginia. He became Virginia's first Senator under the Constitution.
(See _infra_, vol. II, chap. II.) He filled and satisfied the public eye
of his day as a soldier, scholar, and statesman. And yet he has dropped
out of history almost completely. He is one of those rare personalities
whom the whims of time and events have so obscured that they are to be
seen but dimly through the mists. His character and mind can be measured
but vaguely by fragments buried in neglected pages. William Grayson's
talents, work, and vanished fame remind one of the fine ability, and all
but forgotten career of Sir James Mackintosh.

[1259] Elliott, iii, 279.

[1260] Elliott, iii, 273-93 (especial passage, 280).

[1261] Elliott, iii, 293-305.

[1262] Elliott, iii, 319-22; and see chap. II, vol. II, of this work.
Although this, like other economic phases of the contest, was of
immediate, practical and serious concern to the people, Henry touched
upon it only twice thereafter and each time but briefly; and Mason
mentioned it only once. This fact is another proof of the small place
which this grave part of the economic problem occupied in the minds of
the foes of the Constitution, in comparison with that of "liberty" as
endangered by a strong National Government.

[1263] Elliott, iii, 325. At this time the fears of the
Anti-Constitutionalists were principally that the powers given the
National Government would "swallow up" the State Governments; and it was
not until long afterward that objection was made to the right and power
of the National Supreme Court to declare a law of Congress
unconstitutional. (See vol. III of this work.)

[1264] _Ib._, 313-28.

[1265] _Ib._, 328-32.

[1266] _Ib._, 332-33.

[1267] Elliott, iii, 333-51.

[1268] Grigsby, i, 230 and 243.

[1269] _Ib._, 245; Elliott, iii, 251-56. This, the real vote-getting
part of Henry's speech, is not reported by Robertson.

[1270] Grigsby, i, 245.

[1271] Elliott, iii, 356.

[1272] _Ib._, 361-65.

[1273] Grigsby, i, 248.

[1274] Elliott, iii, 366-410.

[1275] Gouverneur Morris from Richmond to Hamilton in New York, June 13,
1788; Hamilton MSS., Lib. Cong.

[1276] Madison to Hamilton, June 16, 1788; Hamilton MSS., Lib. Cong.

[1277] Lee to Hamilton; Hamilton MSS., Lib. Cong. The first paragraph of
Lee's letter to Hamilton shows that the latter was helping his friend
financially; for Lee wrote, "God bless you & your efforts to save me
from the manifold purse misfortunes which have & continue to oppress me,
whenever I attempt to aid human nature. You will do what you think best,
& whatever you do I will confirm--Hazard has acted the part of a decided
rascal, & if I fail in my right, I may not in personal revenge." (_Ib._)

[1278] Madison to Washington, June 13, 1788; _Writings_: Hunt, v, 179
and footnote.

[1279] Elliott, iii, 410-12.

[1280] _Ib._, 412-15.

[1281] _Ib._, 415-18.

[1282] Elliott, iii, 419-20.

[1283] Elliott, iii, 419-21.

[1284] _Ib._, 421-22.

[1285] _Ib._, 422-24.

[1286] Henry turned the tide in Marshall's favor in the latter's hard
fight for Congress in 1798. (_Infra_, vol. II, chap. X.)

[1287] Elliott, iii, 434.

[1288] Elliott, iii, 431. Throughout the entire debate Henry often
sounded his loudest alarms on the supreme power of Congress over the ten
miles square where the National Capital was to be located; and, indeed,
this seems to have been one of the chief sources of popular
apprehension. The fact that the people at large looked upon the proposed
National Government as something foreign, something akin to the British
rule which had been overthrown, stares the student in the face wherever
he turns among the records of the Constitutional period. It is so
important that it cannot too often be repeated.

Patrick Henry, of course, who was the supreme popular orator of our
history and who drew his strength from his perfect knowledge of the
public mind and heart, might have been expected to make appeals based on
this general fear. But when such men as George Mason and William
Grayson, who belonged to Virginia's highest classes and who were
carefully educated men of conservative temper, did the same thing, we
see how deep and strong was the general feeling against any central
National power.

[1289] Elliott, iii, 447-49.

[1290] _Ib._, 452-57.

[1291] Elliott, iii, 473.

[1292] It is exceedingly strange that in the debates on the Constitution
in the various State Conventions, so little, comparatively, was made of
the debt and the speculations in it. The preciousness of "liberty" and
the danger of "monarchy," the security of the former through State
sovereignty and the peril of the latter through National Government,
received far more attention than did the economic problem.

[1293] Elliott, 472-74. And see vol. II, chap. II, of this work.

[1294] "The recovery of the British debts can no longer be postponed and
there now seems to be a moral certainty that your patrimony will all go
to satisfy the unjust debt from your papa to the Hanburys." (Tucker to
his stepsons, June 29, 1788, quoted in Conway, 106; and see comment,
_ib._)

[1295] Elliott, iii, 484.

[1296] _Ib._, 491.

[1297] Grayson to Dane, June 18, 1788; Dane MSS., Lib. Cong. This shows
the loose management of the Anti-Constitutionalist politicians: for
Kentucky had fourteen votes in the Convention, instead of thirteen, as
Grayson declared; and so uncertain was the outcome that to omit a single
vote in calculating the strength of the contending forces was
unpardonable in one who was, and was accounted to be, a leader.




CHAPTER XII

THE STRATEGY OF VICTORY

    Washington's influence carried this government [Virginia's
    ratification of the Constitution]. (Monroe to Jefferson, July 12,
    1788.)

    If I shall be in the minority, I shall have those painful
    sensations which arise from a conviction of _being overpowered in
    a good cause_. Yet I will be a peaceable citizen. (Henry, in his
    last debate.)


Now came the real tug-of-war. The debate on the Judiciary was the
climax of the fight. And here John Marshall was given the place of
chief combatant. The opposition felt that again they might influence
one or two delegates by mere debate, and they prepared to attack
with all their might. "Tomorrow the Judiciary comes on when we
[Anti-Constitutionalists] shall exert our whole force. It is expected we
shall get two Votes if the point is conducted in an able & masterly
manner," Grayson advised the opposition headquarters in New York.[1298]

The Judiciary was, indeed, the weakest part of the Constitutionalists'
battle line. The large amount of the British debts; the feeling, which
Virginia's legislation against the payment of them had fostered, that
the day would be far distant and perhaps would never come when those
debts would have to be paid; the provision of the Constitution
concerning the making of treaties, which were to be the supreme law of
the land; the certainty that the Treaty of Peace would be covered by the
new fundamental law; the fear that another treaty would be negotiated
governing the British obligations more specifically, if the
Constitution were adopted; the fact that such a treaty and all other
National laws would be enforced by National Courts--all these and many
other germane considerations, such as land grants and confused titles,
were focused on the fears of the planters.

The creditor class were equally anxious and alarmed. "If the new
Constitution should not be adopted or something similar, we are of the
opinion that such is the interest and influence of Debtors in our State
that every thing ... will be at Risk" was the opinion of the legal
representatives in Virginia of the Collins mercantile house.[1299]

Great quantities of land granted under the Royal Government by Great
Britain, but which the State had confiscated, had been bought and
settled by thousands of men whose families now lived upon this land; and
these settlers felt that, in some way, their titles would be in danger
if they were dragged before a National Court.[1300]

The Constitutionalists did not underestimate their peril, and at no
point during the three weeks' debate did they prepare for battle with
greater care. They returned to their original tactics and delivered the
first blow. Pendleton, of course, was the ideal man to lead the
Constitutionalist attack. And never in his whole life did that
extraordinary man make a more convincing argument.[1301] Mason tried his
best to answer Pendleton, although he admitted that the Judiciary "lies
out of my line." Still he was clear, in his own mind, that the National
Judiciary was "so constructed as to destroy the dearest rights of the
community," and thought it would "destroy the state governments,
whatever may have been the intention."

While Mason spoke with uncertainty, it was in this brief speech that
this eminent Virginian uncovered the hidden thought and purpose of many
of the Constitutionalists; and uttered an unconscious prophecy which it
was the destiny of John Marshall to realize. "There are," said Mason,
"many gentlemen in the United States who think it right that we should
have one great, national, consolidated government, and that it was
better to bring it about slowly and imperceptibly rather than all at
once. This is no reflection on any man, for I mean none. To those who
think that one national, consolidated government is best for America,
this extensive judicial authority will be agreeable"; and he further
declared, "I know from my own knowledge many worthy gentlemen" of this
opinion. Madison demanded of Mason "an unequivocal explanation." Mason
exonerated Madison, personally, and admitted that "neither did I ever
hear any of the delegates from this state advocate it." Thus did the
extreme courtesy of the Virginia debate cause the opposition to yield
one of its most effective weapons.[1302]

But Mason made the most out of the Constitution's proposed Judiciary
establishment. Take it at its best, said he: "Even suppose the poor man
should be able to obtain judgment in the inferior court, for the
greatest injury, what justice can he get on appeal? Can he go four or
five hundred miles? Can he stand the expense attending it?"[1303] As to
the jurisdiction of National Courts in controversies between citizens of
different States, "Can we not trust our state courts with a decision of
these?" asked Mason. "What!" cried he, "carry me a thousand miles from
home--from my family and business--to where, perhaps, it will be
impossible for me to prove that I paid" the money sued for.

"Is not a jury excluded absolutely?" by the Constitution, asked Mason.
And even if a jury be possible in National Courts, still, under the
Constitution, where is there any right to challenge jurors? "If I be
tried in the Federal Court for a crime which may effect my life, have I
a right of challenging or excepting to the jury?" This omission was a
serious and immediate peril to great numbers of Virginians, said he. "I
dread the ruin that will be wrought on thirty thousand of our people
[deriving their titles through Fairfax] with respect to disputed lands.
I am personally endangered as an inhabitant of the Northern Neck." Under
the Constitution "the people of that part will be obliged ... to pay the
quit rent of their lands." This was to Mason, "a most serious
alarm...."

"Lord Fairfax's title was clear and undisputed," he continued. The State
had "taxed his lands as private property"; but "after his death"
Virginia, in 1782, "sequestered the quit rents due at his death, in the
hands of his debtors. The following year" they were restored to his
executor. Then came the Treaty of Peace providing against "further
confiscation"; but, "after this, an act of Assembly passed, confiscating
his [Fairfax's] whole property."

So, concluded Mason, "as Lord Fairfax's title was indisputably good, and
as treaties [under the Constitution] are to be the supreme law of the
land, will not his representatives be able to recover all in the federal
court? How will gentlemen like to pay an additional tax on lands in the
Northern Neck?" Yet that was what they would be compelled to do if the
Constitution were adopted. Thus they would be "doubly taxed." "Were I
going to my grave, I would appeal to Heaven that I think it [this]
true," fervently avowed the snowy-haired Mason.

Thus Mason made one of the cleverest appeals of the whole debate to the
personal and pecuniary interests of a considerable number of the people
and to several members of the Convention. In this artful and somewhat
demagogic argument he called attention to the lands involved in other
extensive land grants. As we have seen, John Marshall was then
personally interested in the Fairfax title,[1304] and he was soon to
possess it; in after years, it was to develop one of the great legal
contests of history; and the court over which Marshall was to preside
was to settle it definitively.

Although not a lawyer,[1305] Madison now made an argument which was one
of the distinguished intellectual performances of the Convention. But he
did not comprehend the sweep of the National Judiciary's power. "It is
not in the power of individuals," said Madison, "to call any state into
court." It may be that this statement influenced John Marshall, who soon
followed, to repeat it.[1306]

But it was Henry who gave the subject of the Judiciary that thrill,
anticipation of which filled every seat on the floor and packed the
galleries. "Mournful," to Henry, were the recollections which the debate
already had produced. "The purse is gone; the sword is gone," and now
the scales of Justice are to be given away. Even the trial by jury is to
be abandoned. Henry spoke long and effectively; and, extravagant as most
of his statements were, his penetrating mind was sometimes more nearly
right in its forecast than even that of Madison.

As he closed, the daring of the Patrick Henry of 1765 and 1775 displayed
itself. "Shall Americans give up that [jury trial] which nothing could
induce the English people to relinquish?" he exclaimed. "The idea is
abhorrent to my mind. There was a time when we should have spurned at
it.... Old as I am, it is probable I may yet have the appellation of
_rebel_.... As this government [Constitution] stands, I despise and
abhor it," cried the unrivaled orator of the people.[1307]

Up now rose John Marshall, whom the Constitutionalist leaders had agreed
upon for the critical task of defending the Judiciary article. Marshall,
as we have seen, had begun the practice of law in Richmond only five
years before; and during much of this period his time and attention had
been taken by his duties as a delegate in the Legislature. Yet his
intellectual strength, the power of his personality, his likableness,
and all the qualities of his mind and character had so impressed every
one that, by common consent, he was the man for the hour and the work at
hand. And Marshall had carefully prepared his speech.[1308]

The Judiciary provided by the Constitution was, said Marshall "a great
improvement on that system from which we are now departing. Here [in the
Constitution] are tribunals appointed for _the decision of
controversies_ which were before either not at all, or improperly,
provided for. That many benefits will result from this to the members of
the collective society, every one confesses." The National Judiciary
deserved the support of all unless it was "defectively organized and so
constructed as to injure, instead of accommodate, the convenience of the
people."

After the "fair and able" discussion by its supporters, Marshall
supposed that its opponents "would be convinced of the impropriety of
some of their objections. But," he lamented, "they still continue the
same opposition." And what was their complaint? This: That National
Courts would not be as fair and impartial as State Courts.

But why not? asked Marshall. Was it because of their tenure of office or
the method of choosing them? "What is it that makes us trust our [State]
judges? Their independence in office and manner of appointment."[1309]
But, under the Constitution, are not National judges "chosen with as
much wisdom as the judges of the state governments? Are they not
equally, if not more independent? If so," will they not be equally fair
and impartial? "If there be as much wisdom and knowledge in the United
States as in a particular state," will they "not be equally exercised in
the selection of [National] judges?" Such were the questions which
Marshall poured upon the Anti-Constitutionalists.

The kernel of the objection to National Courts was, declared Marshall,
"a belief that there will not be a fair trial had in those courts." But
it was plain, he argued, that "we are as secure there as anywhere else.
What mischief results from some causes being tried there [in the
National Courts]?" Independent judges "wisely appointed ... will never
countenance an unfair trial." Assuming this to be true "what are the
subjects of the jurisdiction" of National Courts? To Mason's objection
that Congress could create any number of inferior courts it might deem
necessary, Marshall replied that he had supposed that those who feared
Congress would say that "no inferior courts" would be established, "but
that we should be dragged to the centre of the Union." On the contrary,
the greater the number of these inferior courts, the less danger "of
being dragged to the centre of the United States."

Mason's point, that the jurisdiction of National Courts would extend to
all cases, was absurd, argued Marshall. For "has the government of the
United States power to make laws on every subject?... laws affecting the
mode of transferring property, or contracts, or claims, between citizens
of the same state? Can" Congress "go beyond the delegated powers?"
Certainly not. Here Marshall stated the doctrine which, fifteen years
later, he was to announce from the Supreme Bench:--

"If," he asserted, "they [Congress] were to make a law not warranted by
any of the powers enumerated, it would be considered by the [National]
judges as an infringement of the Constitution which they are to guard.
They would not consider such a law as coming under their jurisdiction.
_They would declare it void_.... To what quarter will you look for
protection from an infringement of the Constitution, if you will not
give the power to the judiciary? There is no other body that can afford
such a protection."

The National Courts would not supplant the State tribunals. The
Constitution did not "exclude state courts" from those cases which they
now possess. "They have concurrent jurisdiction with the Federal courts
in those cases in which the latter have cognizance," expounded the
nascent jurist. "Are not controversies respecting lands claimed under
the grants of different states the only controversies between citizens
of the same state which the Federal Judiciary can take [exclusive]
cognizance of?"

The work of the National Courts would make the State Courts more
efficient because it would relieve them of a mass of business of which
they were not able to dispose. "Does not every gentleman know that the
causes in our [State] courts are more numerous than they can decide?"
asked Marshall. "Look at the dockets," he exclaimed. "You will find them
crowded with suits which the life of man will not see determined.[1310]
If some of these suits be carried to other courts, will it be wrong?
They will still have business enough."

How vain and fanciful, argued Marshall, the contention that National
judges would screen "officers of the [National] government from merited
punishment." Does anybody really believe that "the Federal sheriff will
go into a poor man's house and beat him or abuse his family and the
Federal court will protect him," as Mason and Henry had said would be
the case? Even if a law should be passed authorizing "such great insults
to the people ... it would be void," declared Marshall. Thus he stated
for the second time the doctrine which he was, from the Supreme Bench,
to put beyond controversy.

Why, asked Marshall, "discriminate [in the Constitution] between ...
chancery, admiralty and the common law" as the Anti-Constitutionalists
insisted upon doing? "Why not leave it to Congress? They ... would not
wantonly infringe your rights." If they did, they would "render
themselves hateful to the people at large." Therefore, "something may be
left to the legislature [Congress] freely chosen by ourselves from among
ourselves, who are to share the burdens imposed upon the community and
who can be changed at our pleasure. Where power may be trusted and there
is no motive to abuse it, it ... is as well to leave it undetermined as
to fix it in the Constitution."

These sentences had prophecy in them. Indeed, they were to be repeated
almost without change by the same man that now uttered them in debate,
when he should ascend to the ultimate place of official interpretation
of our fundamental law. While Hamilton's immortal state papers
profoundly impressed Marshall, as we shall see, they were not, as many
have supposed, the source of his convictions. In the Virginia
Constitutional Convention of 1788 Marshall stated in debate the elements
of most of his immortal Nationalist opinions.

But there was one exception. As to "disputes between _a state and the
citizens of another state_," Marshall hoped "that no gentleman will
think that a state will be called at the bar of a Federal court.... It
is not rational to suppose that the Sovereign power should be dragged
before a court. The intent is to enable states to recover claims of
individuals residing in other states." If there were partiality in
this--"if an individual cannot ... obtain judgment against a state,
though he may be sued by a state"--it was a difficulty which could "not
be avoided"; let the claimant apply to the State Legislature for relief.

The objection to suits in the National Courts between citizens of
different States went "too far," contended Marshall. Such actions "may
not in general be absolutely necessary," but surely in some such cases
"the citizen ... ought to be able to recur to this [National] tribunal."
What harm could it do? "Will he get more than justice there? What has he
to get? Justice! Shall we object to this because the citizen of another
state can obtain justice without applying to our state courts?" Indeed,
"it may be necessary" in causes affected by "the laws and regulations of
commerce" and "in cases of debt and some other controversies."... "In
claims for land it is not necessary--but it is not dangerous."

These suits between citizens of different States "will be instituted in
the state where the defendant resides, and nowhere else," expounded the
youthful interpreter of the Constitution; and the case "will be
determined by the laws of the state where the contract was made.
According to those laws, and those only, can it be decided." That was no
"novelty," but "a principle" long recognized in the jurisprudence of
Virginia. "The laws which governed the contract at its formation, govern
it in its decision." National Courts, in such controversies, would
"preserve the peace of the Union," because if courts of different States
should not give justice between citizens of those States, the result
would be "disputes between the states." Also the jurisdiction of
National Courts in "controversies between a state and a foreign
state ... will be the means of preventing disputes with foreign
nations"; for since "the previous consent of the parties is
necessary ... each party will acquiesce."

As to "the exclusion of trial by jury, in this case," Marshall asked,
"Does the word _court_ only mean the judges? Does not the determination
of the jury necessarily lead to the judgment of the court? Is there
anything" in the Constitution "which gives the [National] judges
exclusive jurisdiction of matters of fact? What is the object of a jury
trial? To inform the court of the facts." If "a court has cognizance of
facts," it certainly "can make inquiry by a jury," dryly observed
Marshall.

He ridiculed Mason's and Henry's statement that juries, in the ten miles
square which was to be the seat of the National Government, would be
"mere tools of parties with which he would not trust his person or
property." "What!" exclaimed Marshall, "Will no one stay there but the
tools and officers of the government?... Will there not be independent
merchants and respectable gentlemen of fortune ... worthy farmers and
mechanics" in the National Capital just as there were in Richmond? And
"will the officers of the government become improper to be on a jury?
What is it to the government whether this man or that man succeeds? It
is all one thing."

As to jury trial not being guaranteed by the National Constitution in
civil cases, neither did Virginia's Constitution, said Marshall, "direct
trials by jury"; and the provision was "merely recommendatory"
concerning jury trials in the Bill of Rights, which, as everybody knew,
was no part of the State Constitution. "Have you a jury trial when a
judgment is obtained on a replevin bond or by default?" Or "when a
motion is made by the Commonwealth against an individual ... or by one
joint obligor against another, to recover sums paid as security." Of
course not! "Yet they are all civil cases.... The Legislature of
Virginia does not give a trial by jury where it is not necessary, but
gives it wherever it is thought expedient." And Congress would do the
same, he reassured the Convention.

Mason's objection, that the right to challenge jurors was not guaranteed
in the Constitution, was trivial, said Marshall. Did Virginia's
Constitution make such a guaranty? Did the British Constitution do so by
any express provision? Was jury challenge secured by Magna Charta? Or by
the Bill of Rights?[1311] Every Virginian knew that they were not. "This
privilege is founded in their [English people's] laws," Marshall
reminded the Convention. So why insert it in the American Constitution?

Thus the inhabitants of the Northern Neck or anybody else were not in
danger on that score. Neither were they placed in jeopardy in any other
way by the Constitution. Here Marshall made a curious argument. Mason,
he said, had "acknowledged that there was no complete title[1312] [in
Fairfax].... Was he [Mason] not satisfied that the right of the legal
representatives of the proprietor [to collect quitrents] did not exist
at the time he mentioned [the date of the Treaty of Peace]? If so, it
cannot exist now," declared Marshall. "I trust those who come from that
quarter [the Northern Neck] will not be intimidated on this account in
voting on this question" he pleaded; for let them remember that there
was "a law passed in 1782 [sequestration of quitrents] which secured
this."

Let the "many poor men" who Mason had said might "be harassed by the
representatives of Lord Fairfax" rest assured on that point; for "if he
[Fairfax] has no right," they could not be disturbed. "If he has this
right [to collect quitrents] and comes to Virginia, what laws will his
claims be determined by?" By Virginia's laws. "By what tribunals will
they be determined? By our state courts."[1313] So the "poor man" who
was "unjustly prosecuted" would "be abundantly protected and satisfied
by the temper of his neighbors."[1314]

The truth was, said Marshall, that justice would be done in all cases by
both National and State Courts. Laws would not be "tyrannically
executed" as the opposition feared; the "independency of your judges"
would prevent that. "If," he argued, "a law be exercised tyrannically in
Virginia, to whom can you trust? To your Judiciary! What security have
you for justice? Their independence! Will it not be so in the Federal
court?"

Like other objections to the power of Congress and the conduct of
National Courts, the criticism that men might be punished for their
political opinions was, declared Marshall, groundless and absurd; for,
"the good opinion of the people at large must be consulted by their
representatives--otherwise mischiefs would be produced which would shake
the government to its foundations." Of course, then, he contended,
neither Congress nor the courts would abuse their power. The charge that
"unjust claims will be made, and the defendant had better pay them than
go to the Supreme Court" was unthinkable. Would anybody incur great
expense to oppress another? "What will he gain by an unjust demand?
Does a claim establish a right? He must bring his witnesses to prove his
claim"; otherwise "the expenses must fall on him." Will he take the
chances that the injured man will not appear and defend the unjust suit?
"Those who know human nature, black as it is," sarcastically observed
Marshall, "must know that mankind are too attached to their own interest
to run such a risk."

"The Federal Government," exclaimed Marshall, "has no other motive, and
has every reason for doing right which the members of our state
legislature have. Will a man on the eastern shore be sent to be tried in
Kentucky, or a man from Kentucky be brought to the eastern shore to have
his trial? A government, by doing this, would destroy itself."[1315]

This, in effect, was John Marshall's exposition of the second section of
article three of the Constitution. Although Grigsby, whose accuracy on
such details is not questioned, says that the speech was prepared,
Robertson's report would not indicate that such was the case. The
address is wanting in that close-knit continuity of reasoning and in
that neatness of thought and expression which were Marshall's peculiar
excellence. Like his first debate in the Convention, his speech on the
Judiciary is disjointed. A subject is half treated in one part of his
remarks and resumed in another.[1316] But he makes his principal points
with clearness and power. His argument is based on the independence of
the courts as the best guaranty against unjust decisions; the
responsibility of Congress to the people as the strongest safeguard
against oppressive laws; and the similarity of Virginia's Constitution
and Courts to the National Constitution and Courts as proof of the
security, fairness, and justice of the National Judiciary.

Marshall's effort really closed the case for the Constitution on the
Judiciary. That night Madison wrote to Hamilton that "a great effort is
making" against the Judiciary. "The retrospection to cases antecedent to
the Constitution, such as British debts and an apprehended revival of
Fairfax--Indiana, Vandalia, &c., claims are also brought into view in
all the terrific colours which imagination can give them.... Delay & an
adjournment will be tried if the adverse party find their numbers
inferior.... At present it is calculated that we still retain a majority
of 3 or 4; and if we can weather the storm ag^{st}" the Judiciary, "I
shall hold the danger to be pretty well over. There is nevertheless a
very disagreeable uncertainty in the case; and the more so as there is a
possibility that our present strength may be miscalculated."[1317]

Marshall's speech alarmed the opposition, and Grayson used all his
learning, wit, and cleverness in an attempt to break its force. Randolph
replied. Thus the second week closed. Neither side was certain of the
exact number of votes it had, though every member was observed with the
politician's anxiety and care.[1318] The Constitutionalists had the
greater confidence. Madison wrote his father that "The calculations on
different sides do not accord;... I think however, the friends of the
Constitution are most confident of superiority.... It is not probable
that many proselytes will be made on either side."[1319]

On Sunday Madison made his weekly report to Hamilton: "The Judiciary
Department has been on the anvil for several days; and I presume will
still be a further subject of disquisition. The attacks on it have
apparently made less impression than was feared. But they may be
secretly felt by particular interests that would not make the
acknowledgment, and w^d chuse to ground their vote ag^{st} the
Constitution on other motives."[1320]

The Anti-Constitutionalists were becoming desperate. If they could not
amend the Constitution as a condition of ratifying it, their game now
was either an adjournment or a delay until the Legislature, scheduled to
meet on the following Monday and known to be, in the main, opposed to
the Constitution, should afford them relief.

If these expedients should fail, there was open talk of secession.[1321]
The Constitutionalists arranged for the utmost dispatch and planned to
"withhold, by a studied fairness in every step on the side of the
Constitution, every pretext for rash experiments." They hoped to avoid
previous amendment by proposing "to preface the ratification with some
plain & general matters that cannot effect the validity of the"
Constitution. They felt that "these expedients are rendered prudent by
the nice balance of members, and the scruples entertained by some who
are in general well affected." But whether these devices "will secure us
a majority," wrote Madison, "I dare not positively to declare."

So small was their expected majority likely to be, that the
Constitutionalists felt that "ordinary casualties ... may vary the
result." They were exceedingly alarmed over the coming to town of the
members of the Legislature who "as individuals ... may have some
influence and as coming immediately from the people at large they can
give any colour they please to the popular sentiments at this moment,
and may in that mode throw a bias on the representatives of the people
in Convention."[1322]

From the adjournment on Saturday until the Convention again assembled on
the following Monday, June 23, the opposition decided that something
more must be done to counteract Marshall's exposition of the Judiciary
article. For this purpose their leader and strongest men took the floor.
The shorthand reporter was not present on this day, but the printer of
the debates took notes.[1323]

Nothing so well shows the esteem in which Marshall's ability was held as
Patrick Henry's compliment to his young associate. "I have," said
Henry, "the highest veneration and respect for the honorable gentleman,
and I have experienced his candor on all occasions"; but "in this
instance" Henry felt that Marshall was mistaken. "It is not on that
paper before you we have to rely.... It is on those who may be appointed
under it. It will be an empire of men, and not of laws."

Marshall interrupted Henry to explain that the latter had not clearly
understood him as to the trial by jury. Henry responded that "the
gentleman's candor, sir, as I informed you before, I have the highest
opinion of, and am happy to find he has so far explained what he meant;
but, sir, has he mended the matter?" Then Henry enlarged upon what he
thought was the Constitution's sacrifice of rights of trial by jury.
What would become of this, that, and the other? What would be the end of
this contract and that? And "what is to become of the _purchases of the
Indians_?--those unhappy nations who ... by being made drunk, have given
a thousand, nay I might say, ten thousand acres, for the trifling sum of
sixpence!" And what of those who owed the British debts?--they will "be
ruined by being dragged into Federal courts and the liberty and
happiness of our citizens gone, never again to be recovered."[1324]

The Constitutionalists had anticipated that Henry would touch on his
hobby, the Indians; and they were ready with an answer far more
effective on the votes of the members than any argument, however
weighty. Hardly had Henry closed when a giant old man got upon his
feet. For more than thirty years this bluff and ancient veteran had been
a soldier. Since 1755 he had been one of the boldest and ablest of
Virginia's famous Indian fighters and often had commanded the Virginia
rangers that defended the frontier from the savages. His utter
fearlessness and tremendous physical strength had made him the terror of
the red man, and his name was a household word throughout Virginia as a
bulwark against the savages. Throughout the Revolution he had borne
himself as a hero. So when Colonel Adam Stephen spoke, his words were
sword-thrusts.[1325]

Henry, growled Stephen, "means to frighten us by his bugbears of
hobgoblins, his sale of lands to pay taxes, Indian purchases and other
horrors that I think I know as much about as he does." Colonel Stephen
then described the Indian country, the Indian tribes, and Indian trade.
He also knew "of several rich mines of gold and silver in the western
country" which would pay the taxes Henry was so worried about. "If the
gentleman [Henry] does not like this government, let him go and live
among the Indians. I know of several nations that live very happily; and
I can furnish him with a vocabulary of their language."[1326]

Nothing can be plainer than that this personal assault on Henry was
prearranged; for George Nicholas followed it up with what came near
being an open insult. Answering Henry's insinuation about Indian lands
being fraudulently purchased, Nicholas retorted, looking directly at
Henry, "there are gentlemen who have come by large possessions that it
is not easy to account for." This was taken as a reflection on some of
Henry's land speculations. The latter felt the sting; for "here Mr.
Henry interfered and hoped the honorable gentleman meant nothing
personal." Nicholas snapped back, "I mean what I say, sir."

The extremes to which the opposition went in lobbying with members and
the nature of their conversation are shown by an acid sentence of
Nicholas in this speech. He referred to "an observation I have heard out
of doors; which was that, because the New England men wore black
stockings and plush breeches, there can be no union with them."

Henry was instantly on his feet when Nicholas finished. He thought the
Convention floor "an improper place" to make "personal insinuations, or
to wound my private reputation.... As to land matters, I can tell how I
came by what I have ... I hold what I hold in right, and in a just
manner." Henry was most courteous and dignified in this discussion,
disclaiming any intention to offend any one. Nicholas responded that he
"meant no personality ... nor ... any resentment." But, said he, "If
such conduct meets the contempt of that gentleman [Henry] I can only
assure him it meets with an equal degree of contempt from me."

Here the President of the Convention interfered and "hoped the
gentlemen would not be personal; that they would proceed to investigate
the subject calmly, and in a peaceable manner." Thereupon Nicholas
admitted that he had not referred to Henry when he first spoke, but to
"those who had taken up large tracts of land in the western country";
Nicholas had not, however, explained this before because he felt that
Henry had said some things that one gentleman ought not to say to
another. Thus ended the second of the only two instances in Virginia's
long and masterful debate which approached a personal quarrel or
displayed even the smallest discourtesy.[1327]

The debate now drew swiftly to a close. Excitement ran high. The
Anti-Constitutionalists, tense and desperate, threatened forcible
opposition to the proposed National Government if it should be
established. Mason "dreaded popular resistance" to the Constitution and
was "emphatic" in his fears of "_the dreadful effects_ ... should the
people resist." Gentlemen should pause before deciding "a question which
involved such awful consequences." This so aroused Lee that he could "no
longer suppress" his "utterance." Much as he liked and admired Mason,
Lee asked him "if he has not pursued the very means to bring into action
the horrors which he deprecates?"

"Such speeches within these walls, from a character so venerable and
estimable," declared Lee, "easily progress into overt acts, among the
less thinking and the vicious." Lee implored that the "God of heaven
avert from my country the dreadful curse!" But, he thundered, "if the
madness of some and the vice of others" should arouse popular resistance
to the Constitution, the friends of that instrument "will meet the
afflicting call"; and he plainly intimated that any uprising of the
people against the proposed National Government would be met with
arms.[1328] The guns of Sumter were being forged.

On the night of June 23, the Constitutionalists decided to deliver their
final assault. They knew that it must be a decisive one. The time had
arrived for the meeting of the Legislature which was hostile to the
Constitution;[1329] and if the friends of the proposed new Government
were to win at all, they must win quickly. A careful poll had shown them
that straight-out ratification without amendment of some kind was
impossible. So they followed the plan of the Massachusetts
Constitutionalists and determined to offer amendments themselves--but
amendments merely by way of recommendation and subsequent to
ratification, instead of previous amendments as a condition of
ratification. The venerable Wythe was chosen to carry out the programme.
On Tuesday morning, June 24, Pendleton called to the chair Thomas
Mathews, one of the best parliamentarians in the Convention, a stanch
Constitutionalist, a veteran of the Revolution, and a popular man.

Instantly Mathews recognized Wythe; for Henry was ready with his
amendments, and, had an Anti-Constitutionalist been in the chair, would
have been able to offer them before Wythe could move for ratification.
Wythe, pale and fatigued, was so agitated that at first he could not
speak plainly.[1330] After reviewing the whole subject, he said that to
insist on previous amendments might dissolve the Union, whereas all
necessary amendments could easily be had after ratification. Wythe then
moved the Constitutionalists' resolution for ratification.

In a towering rage, Henry rose for what, outside of the courtroom, was
the last great speech of his life.[1331] He felt that he had been
unjustly forestalled and that the battle against the Constitution was
failing because of the stern and unfair tactics of his foes.[1332] The
Constitutionalists admitted, said Henry, that the Constitution was
"capitally defective"; yet they proposed to ratify it without first
remedying its conceded faults. This was so absurd that he was "sure the
gentleman [Wythe] meant nothing but to amuse the committee. I know his
candor," said Henry. "His proposal is an idea dreadful to me.... The
great body of yeomanry are in decided opposition" to the Constitution.

Henry declared that of his own personal knowledge "nine tenths of the
people" in "nineteen counties adjacent to each other" were against the
proposed new National Government. The Constitutionalists' plan of
"subsequent amendments will not do for men of this cast." And how do the
people feel even in the States that had ratified it? Look at
Pennsylvania! Only ten thousand out of seventy thousand of her people
were represented in the Pennsylvania Convention.

If the Constitution was ratified without previous amendments, Henry
declared that he would "have nothing to do with it." He offered the Bill
of Rights and amendments which he himself had drawn, proposing to refer
them to the other States "for their consideration, previous to its
[Constitution's] ratification."[1333] Henry then turned upon the
Constitutionalists their own point by declaring that it was their plan
of ratification without previous amendments which would endanger the
Union.[1334] Randolph followed briefly and Dawson at great length.
Madison for the Constitutionalists, and Grayson for the opposition,
exerted themselves to the utmost. Nature aided Henry when he closed the
day in an appeal such as only the supremely gifted can make.

[Illustration: PATRICK HENRY]

"I see," cried Henry, in rapt exaltation, "the awful immensity of the
dangers with which it [the Constitution] is pregnant. I see it. I feel
it. I see beings of a higher order anxious concerning our decision. When
I see beyond the horizon that bounds human eyes, and look at the
final consummation of all human things, and see those intelligent beings
which inhabit the ethereal mansions reviewing the political decisions
and revolutions which, in the progress of time, will happen in America,
and the consequent happiness or misery of mankind, I am led to believe
that much of the account, on one side or the other, will depend on what
we now decide. Our own happiness alone is not affected by the event. All
nations are interested in the determination. We have it in our power to
secure the happiness of one half of the human race. Its adoption may
involve the misery of the other hemisphere."[1335]

In the midst of this trance-like spell which the master conjurer had
thrown over his hearers, a terrible storm suddenly arose. Darkness fell
upon the full light of day. Lightnings flashed and crashing thunders
shook the Convention hall. With the inspiration of genius this unrivaled
actor made the tempest seem a part of his own denunciation. The scene
became insupportable. Members rushed from their seats.[1336] As Henry
closed, the tempest died away.

The spectators returned, the members recovered their composure, and the
session was resumed.[1337] Nicholas coldly moved that the question be
put at nine o'clock on the following morning. Clay and Ronald opposed,
the latter declaring that without such amendments "as will secure the
happiness of the people" he would "though much against his inclination
vote against this Constitution."

Anxious and prolonged were the conferences of the Constitutionalist
managers that night. The Legislature had convened. It was now or never
for the friends of the Constitution. The delay of a single day might
lose them the contest. That night and the next morning they brought to
bear every ounce of their strength. The Convention met for its final
session on the historic 25th of June, with the Constitutionalists in
gravest apprehension. They were not sure that Henry would not carry out
his threat to leave the hall; and they pictured to themselves the
dreaded spectacle of that popular leader walking out at the head of the
enraged opposition.[1338]

Into the hands of the burly Nicholas the Constitutionalists wisely gave
command. The moment the Convention was called to order, the chair
recognized Nicholas, who acted instantly with his characteristically icy
and merciless decision. "The friends of the Constitution," said
Nicholas, "wish to take up no more time, the matter being now fully
discussed. They are convinced that further time will answer no end but
to serve the cause of those who wish to destroy the Constitution. We
wish it to be ratified and such amendments as may be thought necessary
to be subsequently considered by a committee in order to be recommended
to Congress." Where, he defiantly asked, did the opposition get
authority to say that the Constitutionalists would not insist upon
amendments after they had secured ratification of the Constitution? They
really wished for Wythe's amendments;[1339] and would "agree to any
others which" would "not destroy the spirit of the Constitution."
Nicholas moved the reading of Wythe's resolution in order that a vote
might be taken upon it.[1340]

Tyler moved the reading of Henry's proposed amendments and Bill of
Bights. Benjamin Harrison protested against the Constitutionalists'
plan. He was for previous amendment, and thought Wythe's "measure of
adoption to be unwarrantable, precipitate, and dangerously impolitic."
Madison reassured those who were fearful that the Constitutionalists, if
they won on ratification, would not further urge the amendments Wythe
had offered; the Constitutionalists then closed, as they had begun, with
admirable strategy.

James Innes was Attorney-General. His duties had kept him frequently
from the Convention. He was well educated, extremely popular, and had
been one of the most gifted and gallant officers that Virginia had sent
to the front during the Revolution. Physically he was a colossus, the
largest man in that State of giants. Such was the popular and imposing
champion which the Constitutionalists had so well chosen to utter their
parting word.[1341] And Innes did his utmost in the hardest of
situations; for if he took too much time, he would endanger his own
cause; if he did not make a deep impression, he would fail in the
purpose for which he was put forward.[1342]

Men who heard Innes testify that "he spoke like one inspired."[1343] For
the opposition the learned and accomplished Tyler closed the general
debate. It was time wasted on both sides. But that nothing might be left
undone, the Constitutionalists now brought into action a rough,
forthright member from the Valley. Zachariah Johnson spoke for "those
who live in large, remote, back counties." He dwelt, he said, "among the
poor people." The most that he could claim for himself was "to be of the
middle rank." He had "a numerous offspring" and he was willing to trust
their future to the Constitution.[1344]

Henry could not restrain himself; but he would better not have spoken,
for he admitted defeat. The anxious Constitutionalists must have
breathed a sigh of relief when Henry said that he would not leave the
hall. Though "_overpowered in a good cause_, yet I will be a peaceable
citizen." All he would try to do would be "to remove the defects of that
system [the Constitution] in a constitutional way." And so, declared the
scarred veteran as he yielded his sword to the victors, he would
"patiently wait in expectation of seeing that government changed, so as
to be compatible with the safety, liberty, and happiness, of the
people."

Wythe's resolution of ratification now came to a vote. No more carefully
worded paper for the purposes it was intended to accomplish ever was
laid before a deliberative body. It reassured those who feared the
Constitution, in language which went far to grant most of their demands;
and while the resolve called for ratification, yet, "in order to relieve
the apprehensions of those who may be solicitous for amendments," it
provided that all necessary amendments be _recommended_ to Congress.
Thus did the Constitutionalists, who had exhausted all the resources of
management, debate, and personal persuasion, now find it necessary to
resort to the most delicate tact.

The opposition moved to substitute for the ratification resolution one
of their own, which declared "that previous to the ratification ... a
declaration of rights ... together with amendments ... should be
referred by this Convention to the other states ... for their
consideration." On this, the first test vote of the struggle, the
Constitutionalists won by the slender majority of 8 out of a total of
168. On the main question which followed, the Anti-Constitutionalists
lost but one vote and the Constitution escaped defeat by a majority of
only 10.

To secure ratification, eight members of the Convention voted against
the wishes of their constituents,[1345] and two ignored their
instructions.[1346] Grayson openly but respectfully stated on the floor
that the vote was the result of Washington's influence. "I think," said
he, "that, were it not for one great character in America, so many men
would not be for this government."[1347] Followers of their old
commander as the members from the Valley were, the fear of the Indians
had quite as much to do with getting their support for a stronger
National Government as had the weight of Washington's influence.[1348]

Randolph "humbly supplicated one parting word" before the last vote was
taken. It was a word of excuse and self-justification. His vote, he
said, would be "ascribed by malice to motives unknown to his breast." He
would "ask the mercy of God for every other act of his life," but for
this he requested only Heaven's justice. He still objected to the
Constitution, but the ratification of it by eight States had now
"reduced our deliberations to the single question of _Union_ or no
_Union_."[1349] So closed the greatest debate ever held over the
Constitution and one of the ablest parliamentary contests of history.

A committee was appointed to report "a form of ratification pursuant to
the first resolution"; and another was selected "to prepare and report
such amendments as by them shall be deemed necessary."[1350] Marshall
was chosen as a member of both these important committees.

The lengths to which the Constitutionalists were driven in order to
secure ratification are measured by the amendments they were forced to
bring in. These numbered twenty, in addition to a Bill of Rights, which
also had twenty articles. The ten amendments afterwards made to the
Constitution were hardly a shadow of those recommended by the Virginia
Convention of 1788.

That body actually proposed that National excise or direct tax laws
should not operate in any State, in case the State itself should collect
its quota under State laws and through State officials; that two thirds
of both houses of Congress, present, should be necessary to pass
navigation laws or laws regulating commerce; that no army or regular
troops should be "raised or kept up in time of peace" without the
consent of two thirds of both houses, present; that the power of
Congress over the seat of the National Government should be confined to
police and administrative regulation. The Judiciary amendment would have
imprisoned the Supreme Court within limits so narrow as to render that
tribunal almost powerless and would have absolutely prevented the
establishment of inferior National Courts, except those of
Admiralty.[1351] Yet only on such terms could ratification be secured
even by the small and uncertain majority that finally voted for it.

On June 25, Clinton's suppressed letter to Randolph was laid before the
House of Delegates which had just convened.[1352] Mason was so furious
that he drew up resolutions for an investigation of Randolph's
conduct.[1353] But the deed was done, anger was unavailing, and the
resolutions never were offered.[1354]

So frail was the Constitutionalist strength that if the news of the New
Hampshire ratification had not reached Virginia, it is more than
probable that Jefferson's advice would have been followed and that the
Old Dominion would have held back until all the amendments desired by
the opposition had been made a part of the fundamental law;[1355] and
the Constitution would have been a far different and infinitely weaker
instrument than it is.

Burning with wrath, the Anti-Constitutionalists held a meeting on the
night of the day of the vote for ratification, to consider measures for
resisting the new National Government. The character of Patrick Henry
never shone with greater luster than when he took the chair at this
determined gathering of furious men. He had done his best against the
Constitution, said Henry, but he had done it in the "_proper place_";
the question was settled now and he advised his colleagues that "as true
and faithful republicans, they had all better go home!"[1356] Well might
Washington write that only "conciliatory conduct" got the Constitution
through;[1357] well might he declare that "it is nearly impossible for
anybody who has not been on the spot (from any description) to conceive
what the delicacy and danger of our situation have been."[1358]

And Marshall had been on the spot. Marshall had seen it all. Marshall
had been a part of it all. From the first careful election programme of
the Constitutionalists, the young Richmond lawyer had been in every
meeting where the plans of the managers were laid and the order of
battle arranged. No man in all the country knew better than he, the
hair's breadth by which the ordinance of our National Government escaped
strangulation at its very birth. No one in America better understood how
carefully and yet how boldly Nationalism must be advanced if it were to
grow stronger or even to survive.

It was plain to Marshall that the formal adoption of the Constitution
did not end the battle. That conflict, indeed, was only beginning. The
fight over ratification had been but the first phase of the struggle. We
are now to behold the next stages of that great contest, each as
dramatic as it was vital; and we shall observe how Marshall bore himself
on every field of this mighty civil strife, note his development and
mark his progress toward that supreme station for which events prepared
him. We are to witness his efforts to uphold the National Government,
not only with argument and political activity, but also with a
readiness to draw the sword and employ military force. We shall look
upon the mad scenes resulting in America from the terrific and bloody
convulsion in Europe and measure the lasting effect the French
Revolution produced upon the statesmen and people of the United States.
In short, we are to survey a strange swirl of forces, economic and
emotional, throwing to the surface now one "issue" and now another, all
of them centering in the sovereign question of Nationalism or States'
Rights.


FOOTNOTES:

[1298] Grayson to Dane, June 18, 1788; Dane MSS., Lib. Cong.

[1299] Logan and Story to Stephen Collins, Petersburg, Nov. 2, 1787;
Collins MSS., Lib. Cong.

[1300] See Grigsby, i, 278-79, for an able and sympathetic account from
the point of view of the settler and debtor.

[1301] _Ib._, 280-84; Elliott, iii, 517-21.

[1302] Elliott, iii, 522; Grigsby, i, 284. So overwhelming was the
popular feeling against a strong National Government that, if the
Anti-Constitutionalists had concentrated their attack upon this secret
purpose of the leading Constitutionalists to make it such by easy
stages, it is more than probable that the Constitution would have been
defeated.

[1303] Elliott, iii, 524.

[1304] His own and his father's lands in Fauquier County were derived
through the Fairfax title.

[1305] Grigsby, i, 290.

[1306] Elliott, iii, 530-39. For Marshall's repetition see _ib._,
551-62.

[1307] Elliott, iii, 539-46.

[1308] Grigsby, i, 297.

[1309] Virginia judges were, at this period, appointed by the General
Assembly. (Constitution, 1776.)

[1310] "There are upwards of 4,000 suits now entered on the docket in
the General Court; and the number is continually increasing. Where this
will end the Lord only knows--should an Act pass to extend the term of
the Courts sitting--it is thought that the number of Executors
[executions] that would issue ... would be too heavy for our government
to bear and that such a rapid transfer of Property would altogether stop
the movement of our Machine." (Logan and Story, to Stephen Collins,
Petersburg, Nov. 2, 1787; Collins MSS., Lib. Cong.)

[1311] This form of argument by asking questions to which the answers
must needs be favorable to his contention was peculiarly characteristic
of Marshall.

[1312] The reporter makes Mason assert the reverse.

[1313] It is hard to see how Marshall arrived at this conclusion. But
for the fact that Marshall prepared this speech, one would think the
reporter erred.

[1314] See Marshall's argument in Hite _vs._ Fairfax, chap, V, _supra_;
and see vol. III of this work.

Randolph made the clearest statement of the whole debate on the Fairfax
question:--

"Lord Fairfax ... died during the war. In the year 1782, an act passed
sequestering all quitrents, then due, in the hands of the persons
holding the lands, until the right of descent should be known, and the
General Assembly should make final provision therein. This act directed
all quitrents, thereafter becoming due, to be paid into the public
treasury; so that, with respect to his descendants, this act confiscated
the quitrents. In the year 1783, an act passed restoring to the legal
representative of the proprietor the quitrents due to him at the time of
his death. But in the year 1785 another act passed, by which the
inhabitants of the Northern Neck are exonerated and discharged from
paying composition and quitrents to the commonwealth." But Randolph then
asserted that: "This last act has completely confiscated this property.
It is repugnant to no part of the treaty, with respect to the quitrents
confiscated by the act of 1782." So, continued he, "I ask the Convention
of the free people of Virginia if there can be honesty in rejecting the
government because justice is to be done by it? I beg the honourable
gentleman to lay the objection to his heart." (Elliott, iii, 574-75.)

[1315] Elliott, iii, 551-62.

[1316] In summarizing Marshall's speech, it is necessary to collect his
arguments on any given point, and present them consecutively. In
Robertson's (Elliott) report Marshall scatters his points in distracting
fashion.

[1317] Madison to Hamilton, June 20, 1788; Hamilton MSS., Lib. Cong.

[1318] The members of the Convention were carefully watched and each
side made, every night, a minute estimate of its votes.

[1319] Madison to his father, June 20, 1788; _Writings_: Hunt, v,
footnote to 216.

[1320] Madison to Hamilton, June 22, 1788; Hamilton MSS., Lib. Cong.

[1321] _Ib._

[1322] Madison to Hamilton, June 22, 1788; Hamilton MSS., Lib. Cong.

[1323] Elliott, iii, 576.

[1324] Elliott, iii, 577-80.

[1325] Grigsby, i, 300. See Washington's letters to Stephen during the
year of Marshall's birth, when Stephen, under Washington, was fighting
the French and Indians. (_Writings_: Ford, i, 227, 322, 332, 360; also
_Proceedings_, Council of War, Oct. 30, 1756; _ib._, 364-71; in which
Colonel Adam Stephen was presiding officer.)

[1326] Elliott, iii, 580.

[1327] Elliott, iii, 581-82.

[1328] Elliott, iii, 585-86.

[1329] "Virginia is the only instance among the ratifying states in
which the Politics of the Legislature are at variance with the sense of
the people, expressed by their Representatives in Convention." (Madison
to Washington, Nov. 5, 1788; _Writings_: Hunt, v, 302.)

[1330] Grigsby, i, 307.

[1331] The two amazing speeches which Henry made that day should be
taken together. While both were inspired by what happened on the floor,
yet they are in reality one. The reports give no idea of the tremendous
effect which those who heard Henry tell us these speeches had.

[1332] Grigsby, i, 307-08.

[1333] Henry's amendments were practically the same as those which the
Convention finally adopted as recommendations subsequent to ratification
instead of previous amendment on which ratification was conditioned.

[1334] Elliott, iii, 587-96.

[1335] Elliott, iii, 625. This extract is badly mangled. The reporter
confesses that he could take only a little of Henry's peroration.
Elliott's reprint of Robertson's reports gives scarcely a suggestion of
its dramatic appeal. We are indebted to Grigsby's patient work in
collecting from eye and ear witnesses first-hand accounts, for a
reasonably accurate description of the scene.

[1336] Grigsby, i, 316-17; also Wirt, 313; Henry, ii, 370-71; and
Conway, 113.

[1337] Grigsby, i, 316-17.

[1338] Grigsby, i, 317.

[1339] Very few of the Constitutionalists wanted any amendments; and
Madison sorrowfully offered in Congress the following year those that
were reluctantly adopted. See vol. II, chap. II, of this work.

[1340] Elliott, iii, 627.

[1341] Grigsby, i, 323-29.

[1342] _Ib._, 328.

[1343] _Ib._, 332.

[1344] Elliott, iii, 644-49.

[1345] Henry, ii, 377. "At least ten members voted, either in
disobedience of positive instructions of their constituents, or in
defiance of their well known opinions." (Grigsby, i, 41.)

[1346] Scott, 235-38.

[1347] Elliott, iii, 616. Madison frankly admitted that only the
prominence of the framers of the Constitution secured even a
consideration of it by many of its warmest friends, much less by the
people. "Had the Constitution been framed and recommended by an obscure
individual," wrote Madison, "instead of a body possessing public respect
and confidence, there cannot be a doubt, that, although it would have
stood in the identical words, it would have commanded little attention
from those who now admire its wisdom." (Madison to Randolph, Jan. 10,
1788; _Writings_: Hunt, v, 81.)

[1348] Grigsby, i, footnote to 110.

[1349] Elliott, iii, 652.

[1350] Elliott, iii. 653-63.

[1351] _Ib._, 659-61.

[1352] Clinton's letter was not read, however, because all the members
of the Legislature had gone to hear Henry's last great speech. (Conway,
112.)

[1353] Conway, 114; Henry, ii, 363.

[1354] For Mason's resolutions and a careful review of the incident, see
Rowland, ii, 274-80.

[1355] Henry, ii, 377.

[1356] _Southern Literary Messenger_, i, 332; also quoted in Rowland,
ii, 274.

[1357] Washington to Pinckney, June 28, 1788; _Writings_: Ford, xi, 285.

[1358] Washington to Jefferson, Aug. 31, 1788; _ib._, 321.


END OF VOLUME I




APPENDIX




I

WILL OF THOMAS MARSHALL, "CARPENTER"


In the Name of God Amen! I, Thomas Marshall of the County of
Westmoreland of Washington Parish, Carpenter, being very weak but of
perfect memory thanks be to God for it doth ordain this my last will and
testament in manner and form following, first I give and bequeath my
soul into the hands of my blessed Creator & Redeemer hoping through
meritts of my blessed Saviour to receive full pardon and remission of
all my sins and my body to the Earth to be decently bur-yed according to
the discretion of my Executrix which hereafter shall be named. Imps. I
make and ordain my well beloved wife Martha Marshall to be my full and
whole Executrix--Item, I will that my estate shall remain in the hands
of my wife as long as she remain single but in case she marrys then she
is to have her lawful part & the rest to be taken out of her hands
equally to be divided among my children--Item, I will that if my wife
marry, that David Brown Senr. and Jno. Brown to be guardians over my
children and to take the estate in their hands bringing it to
appraisement giving in good security to what it is valued and to pay
my children their dues as they shall come to age. Item--I will that
Elizabeth Rosser is to have a heifer delivered by my wife called
White-Belly to be delivered as soon as I am deceast--Item, I will that
my son William Marshall shall have my plantation as soon as he comes to
age to him and his heirs forever, but in case that my son William die
before he comes to age or die without issue then my plantation is to
fall to the next heir apparent at law.

                                                THOMAS MARSHALL (Seal)

  Test EDW: TAYLOR, JOHN HEARFORD,
       JOHN TAYLOR.

                  { At a Court held for the said County the
  WESTMORLD: SS.  { 31st day of May 1704.

The last will and testament of Thomas Marshall within written was proved
by the oaths of John Oxford and John Taylor two of the witnesses thereto
subscribed and a Probat thereof granted to Martha Marshall his relict
and Executrix therein named.

                                        Test
                                          IA: WESTCOMB Cler. Com. Ped.

  Record aty: sexto die Juny:
  1704. Pr.
  _Eundm Clerum._

  A Copy. Teste:
    ALBERT STUART, Clerk.
      By:
        F. F. CHANDLER, Deputy Clerk.

  [A Copy. Will of Thomas Marshall. Recorded in the Clerk's Office of
  the Circuit Court of Westmoreland County, in Deed and Will Book no. 3
  at page 232 _et seq._]




II

WILL OF JOHN MARSHALL "OF THE FOREST"

  The last will and testament of John Marshall being very sick and
  weak but of perfect mind and memory is as followeth.


First of all I give and recommend my soul to God that gave it and my
Body to the ground to be buried in a Christian like and Discent manner
at the Discretion of my Executors hereafter mentioned? Item I give and
bequeath unto my beloved daughter Sarah Lovell one negro girl named
Rachel now in possession of Robert Lovell. Item I give and bequeath unto
my beloved daughter Ann Smith one negro boy named Danniel now in
possession of Augustine Smith. Item I give and bequeath unto my beloved
daughter Lize Smith one negro boy named Will now in possession of John
Smith. Item I give and bequeath unto my well beloved wife Elizabeth
Marshall one negro fellow named Joe and one negro woman named Cate and
one negro woman named pen after Delivering the first child next born of
her Body unto my son John until which time she shall remain in the
possession of my wife Likewise I leave my Corn and meat to remain
unappraised for the use of my wife and children also I give and bequeath
unto my wife one Gray mair named beauty and side saddle also six hogs
also I leave her the use of my land During her widowhood, and afterwards
to fall to my son Thomas Marshall and his heirs forever. Item I leave my
Tobacco to pay my Debts and if any be over for the clothing of my small
children. Item I give and bequeath unto my well Beloved son Thomas
Marshall one negro woman named hanno and one negroe child named Jacob?
Item I give and bequeathe unto my well beloved son John Marshall one
negroe fellow named George and one negroe child named Nan. Item. I give
and bequeathe unto my beloved son Wm. Marshall one negro woman named
Sall and one negro boy named Hanable to remain in the possession of his
mother until he come to the age of twenty years. Item I give and
Bequeath unto my Beloved son Abraham Marshall one negro boy named Jim
and one negroe girl named bett to remain in the possession of his mother
until he come to the age of twenty years. Item I give and Bequeath unto
my Beloved daughter Mary Marshall one negro girl named Cate and negro
boy Gus to remain in possession of her mother until she come to the age
of Eighteen years or until marriage. Item, I give and Bequeath unto my
beloved Daughter Peggy Marshall one negro boy named Joshua and one negro
girl named Liz to remain in possession of her mother until she come to
the age of Eighteen or until marriage! Item. I leave my personal Estate
Except the legacies abovementioned to be equally Divided Between my wife
and six children last above mentioned. Item I constitute and appoint my
wife and my two sons Thos. Marshall and John Marshall Executors of this
my last will & testament In witness hereof I have hereunto set my hand
and fixed my seal this first day of April One thousand seven hundred and
fifty two.

                                                  JOHN MARSHALL (Seal)
  Interlined before assigned.

  BENJAMIN RALLINS }
  WILLIAM HOUSTON  }
  AUGUSTINE SMITH  }

                   { At a Court held for the said County the
  WESTMORLAND SCT. { 26th day of May 1752.

This Last will and testament of John Marshall decd. was presented into
Court by Eliza. his relict and Thomas Marshall two of his Executors
therein named who made oath thereto and being proved by the oaths of
Benja. Rallings and Augustine Smith two of the witnesses thereto is
admitted to record, and upon the motion of the said Eliza. & Thos. and
their performing what the Law in such cases require Certificate is
granted them for obtaining a probate thereof in due form.

                                        Test
                                                GEORGE LEE C. C. C. W.

  Recorded the 22d. day of June 1752.
    Per
      G. L. C. C. W. C.

  A Copy. Teste:

  FRANK STUART, Clerk of the Circuit Court of Westmoreland County,
  State of Virginia.

  [A copy. John Marshall's Will. Recorded in the Clerk's Office of
  Westmoreland County, State of Virginia, in Deeds and Wills, no. 11,
  at page 419 _et seq._]




III

DEED OF WILLIAM MARSHALL TO JOHN MARSHALL "OF THE FOREST"


This indenture made the 23d day of October in ye first year of ye reign
of our sovereign Lord George ye 2d. by ye. grace of God of Great
Brittain France & Ireland King defendr. of ye faith &c. and in ye year
of our Lord God one thousand seven hundred & twenty seven, between
William Marshall of ye. County of King & Queen in ye. Colony of Virginia
planter of the one part & John Marshall of ye. County of Westmoreland
Virginia of the other part: WITNESSETH that ye sd. William Marshall for
and in consideration of ye. sum of five shillings sterling money of
England to him in hand paid before ye sealing & delivery hereof ye.
receipt whereof he doth hereby acknowledge & thereof & of every part
thereof doth hereby acquit & discharge ye. sd John Marshall his heirs
Exectrs & administrators by these presents, hath granted bargained &
sold & doth hereby grant bargain & sell John Marshall his heirs Exectrs
administrs & assigns all that tract or parsel of land (except ye parsel
of land wch was sold out of it to Michael Hulburt) scitute lying & being
in Westmoreland County in Washington parish on or near Appamattox Creek
& being part of a tract of land containing 1200 acres formerly granted
to Jno: Washington & Tho: Pope gents by Patent dated the 4th Septbr.
1661 & by them lost for want of seating & since granted to Collo.
Nicholas Spencer by Ordr. Genll. Court dated Septbr. ye 21st 1668 & by
ye said Spencer assign'd to ye. sd. Jno: Washington ye 9th of Octobr.
1669 which sd. two hundred acres was conveyed & sold to Thomas Marshall
by Francis Wright & afterwards acknowledged in Court by John Wright ye.
28th day of May 1707 which sd two hundred acres of land be ye. same more
or less and bounded as follows beginning at a black Oak standing in ye.
southermost line of ye sd. 1200 acres & being a corner tree of a line
that divideth this two hundred acres from One hundred acres of Michael
Halbarts extending along ye. sd southermost lines west two hundred poles
to a marked red Oak, thence north 160 poles to another marked red Oak
thence east 200 poles to a black Oak of ye sd. Halberts to ye place it
began, with all houses outhouses Orchards water water courses woods
under woods timbers & all other things thereunto belonging with the
revertion & revertions remainder & remainders rents issues & yearly
profits & every part & parcell thereof. To have and to hold ye. sd. land
& premises unto ye. sd John Marshall his heirs Executors Administrs &
assignes from ye. day of ye date thereof for & during & untill the full
end & term of six months from thence next ensuing fully to be compleat &
ended to ye. end that by virtue thereof & of the statutes for
transferring uses into possessions ye. sd John Marshall might be in
actual possession of ye premises & might be enabled to take and accept
of a grant release of the same to him ye. sd John Marshall his heires &
assignes forever. In Witness whereof the parties to these present
Indentures interchangeably have set----hands & seals ye. day & year
first above written.

                                                    WM MARSHALL (seal)

  Signd. Seald & d'd in sight & presence of--  }
    FRANCIS LACON, JANE LACON, THOMAS THOMPSON }

  WESTMORLD. SS. } At a Court held for the sd. County the 27th
                 } day of March 1728.

William Marshall personally acknowledged this lease of land by him
passed to John Marshall to be his proper act and deed, which at the
instance of the sd. John Marshall is admitted to record.

                                              Test
                                                 G. TURBERVILE, C.C.W.

  Recorded the 29th day of March 1728.
    Pr.
      G. T. C. C. W.

  A Copy. Teste:

  FRANK STUART, Clerk of the Circuit Court of Westmoreland County,
  State of Virginia.

  [A copy. William Marshall to John Marshall. Deed. Recorded in the
  Clerk's Office of Westmoreland County, State of Virginia, in Deeds
  and Wills, no. 8-1, at page 276.]




IV

MEMORIAL OF THOMAS MARSHALL FOR MILITARY EMOLUMENTS

    To the Honorable the Speaker and members of the house of
    Delegates, the Memorial of Thomas Marshall humbly sheweth.


That your Memorialist in Aug^t 1775 was appointed Major to the first
minute Battalion raisd within this Commonwealth and early in October the
same year enterd into actual service in which he continued during the
following winter campaign. That while your memorialist commanded at the
Great Bridge he was appointed Major to the 3^d Virginia Continental
Regim^t he did not however retire from service but retaind his command
and continued at his post till the latter end of March 1776 when the
troops under his command were relieved by those of the continent rais'd
in this State, by which time the 3^d Virginia Regim^t was rais'd and
your Memorialist immediately called on to take command in it. That in
Aug^t 1776 he together with the regiment to which he belonged in
obedience to the orders they had rec^d began their march to New York,
where they join'd the Grand-Army. That your Memorialist continued in
hard and unremitting service from this time till the close of the
campaign of 1777. That in the latter end of November 1777 your
Memorialist was informed by an official letter from the then Governor,
of his haveing been appointed by the General Assembly of Virginia to the
command of the State regiment of Artillery;--a command he was only
induced to take by a preference he ever felt for Artillery Service. That
your Memorialist however retain'd his command and continued his service
in the Northern Army till the end of the Campaign when the Troops were
ordered into winter quarters. That your Memorialist then return'd to
Virginia and about the middle of January following took command of his
Regim^t of Artillery, which command he rataind till the 26th of February
1781 at which time, the term of enlistment of most of the soldiers of
the Regim^t having expired, they were discharged and your Memorialist
became a reduced officer. Your Memorialist conceived from the Laws
existing at the time he enter'd into the particular service of this
State and from the different acts respecting the State Troops which have
since passd the Legislature, that he should be intitled to every
emolument to which he would have had a just claim had he remaind in the
Continental Service. If however only particular discriptions of State
Officers are to receive such emoluments as Continental are intitled to,
your Memorialist humbly presumes to hope that his haveing made three of
the severest campaigns in the last war before he took command of the
State Regim^t of Artillery, his haveing rendered, as he trusts, some
services as commanding officer of that Regiment, his haveing remaind in
service till there was no longer a command for him, his having held
himself in readiness to return to service, had his regiment been
recruited, give him as fair a claim to military emoluments as any
officer who has been in the particular service of this State. Your
memorialist therefore humbly prays that your honorable house will take
his services into consideration and allow him those emoluments which may
be given to other State Officers whose services may not be superior to
his.

                                                          T. MARSHALL.

  A true copy
    H. R. MCILWAIN,
          State Librarian.
                  June 20, 1916.

  [Marshalls Pet^n Nov. 25th 1784 Referred to Propositions Props.
  discharged and ref^d to whole on Bill for giving Commutation to
  Officers of 1st and 2d State Regiments.]




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NOTT, ELIPHALET. Memoirs. _See_ Van Santvoord, C.


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       *       *       *       *       *


Transcriber's Notes:

1. Passages in italics are surrounded by _underscores_.

2. Obvious errors in spelling and punctuation have been corrected.

3. Footnotes have been renumbered and moved from the page end to the
end of their respective chapters.

4. Images have been moved from the middle of a paragraph to the closest
paragraph break.

5. Certain words use an oe ligature in the original.

6. Carat character (^) followed by a single letter or a set of letters
in curly brackets is indicative of subscript in the original book.